Citation Nr: 18159565 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 14-23 701 DATE: December 20, 2018 ORDER Entitlement to service connection for right ear hearing loss is denied. REMAND Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT A right ear hearing loss disability was not shown during active service or manifest to a compensable degree within one year of separation from active service, and the most probative evidence of record establishes that the Veteran’s current right ear hearing loss is not causally related to an in-service disease or injury, to include acoustic trauma. CONCLUSION OF LAW The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1970 to February 1975. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from October 2012 and March 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied service connection for right ear hearing loss and TDIU, respectively. 1. Entitlement to service connection for right ear hearing loss is denied. Service connection is granted for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also 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). Service connection for certain chronic diseases, including an organic disease of the nervous system such as sensorineural hearing loss, may also 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 legally 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). To establish service connection for a chronic disease under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those disorders explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the case of any veteran who engaged in combat with the enemy in active service, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in such service satisfactory lay or other evidence of service incurrence of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service even though there is no official record of such incurrence. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). This provision does not mean that a grant of service connection is presumed. Even when the section 1154(b) combat presumptions apply, a “veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury...incurred during active duty.” Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). In addition to the criteria set forth above, service connection for impaired hearing is subject to the additional requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See also Hensley v. Brown, 5 Vet. App. 155 (1993). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran contends that his right ear hearing loss is due to noise exposure during active service. He reports that he had prolonged exposure to heavy artillery and small arms fire, both during training and in the course his military duties, including during combat. As set forth above, the Veteran served on active duty from September 1970 to February 1975. His military occupational specialty was armor crewman, an occupation consistent with noise exposure. Although not recorded on his DD Forms 214 or in his military personnel file, the Veteran has submitted documentation noting that he was awarded the Combat Infantryman Badge, which is reflective of combat service. The Veteran’s service treatment records, however, are negative for complaints or findings of right ear hearing loss. He was seen for impacted ear wax in the right ear in December 1970, but no complaints or findings of hearing loss were noted at that time. At the Veteran’s January 1975 military separation medical examination, audiometric testing revealed puretone thresholds, in decibels, as follows: RIGHT 500 1000 2000 3000 4000 0 0 0 - 0 Because the Veteran exhibited a left ear hearing loss at the time of the December 1974 separation examination, he was provided an Ear, Nose and Throat consultation prior to service separation. That consultation identified moderate high frequency sensorineural hearing loss in the left ear. No complaints or abnormalities pertaining to the right ear were noted, however. In May 2011, the Veteran submitted an application for VA compensation benefits, seeking service connection for multiple disabilities, including bilateral hearing loss and tinnitus. In an September 2011 statement, the Veteran indicated that he had had prolonged exposure to artillery and small arms fire during active duty. He recalled an October 1971 incident in which he temporarily lost the hearing in his left ear after a night of heavy artillery. The Veteran reported, however, that his left ear hearing returned the following day. The Veteran reported that he first became aware of his hearing loss in his left ear after his separation from active service when he underwent an employment physical in 1977 and was advised he had left ear hearing loss. The Veteran’s statement is silent for any mention of right ear hearing loss. In support of his claim, Veteran also submitted September 2011 statements from family members. His spouse noted that the Veteran had a longstanding left ear hearing loss but did not reference a right ear hearing loss. The Veteran’s brother noted that after service separation, the Veteran had worked at a variety of jobs, including on the assembly line for General Motors. He also participated in activities consistent with noise exposure, such as hunting and target shooting. In pertinent part, clinical records assembled in support of the Veteran’s claim include an April 2011 VA audiology note indicating that the Veteran requested a hearing assessment for hearing loss and tinnitus, greater in the left ear, since his time in Vietnam. Audiological evaluation revealed a slight asymmetrical hearing loss. The examiner noted that the Veteran did not meet the criteria for nonservice-connected amplification. The Veteran was afforded a VA examination in September 2012. Audiometric testing showed puretone thresholds, in decibels, as follows: RIGHT 500 1000 2000 3000 4000 15 20 20 35 60 The examiner diagnosed the Veteran as having right and left ear sensorineural hearing loss and tinnitus. The examiner indicated that after carefully reviewing the claims file and the medical literature on the topic, it was his opinion that it was less likely than not that the Veteran’s right ear sensorineural hearing loss was incurred in service, to include as a result of acoustic trauma. The examiner explained that although the Veteran had served as an armor crewman and had reported exposure to tanks, artillery and small arms fire without the use of hearing protection, his entrance and separation audiometric tests revealed normal sensitivity in the right ear. Thus, although the Veteran had a high risk of service-related noise exposure, based on current medical knowledge of cochlear pathology, it did not result in any in-service right ear hearing loss. Moreover, he noted that medical studies had shown no scientific basis for the existence of delayed-onset hearing loss, i.e. it could not be established that permanent noise-induced hearing loss could develop much later in life, long after the cessation of noise exposure. Rather, the available anatomical and physiologic evidence suggests that delayed post exposure noise induced hearing loss is not likely. The examiner, however, concluded that the record provided a sufficient basis upon which to conclude that the Veteran’s current left ear hearing loss and tinnitus had been incurred in service. Based on the examiner’s opinion, the RO has awarded service connection for both left ear hearing loss and tinnitus. Service connection for right ear hearing loss has been denied and this appeal follows. Applying the relevant facts in this case to the legal criteria set forth above, the Board finds that the preponderance of the evidence is against the claim of service connection for right ear hearing loss. The Veteran has credibly reported acoustic trauma during active service, including in combat situations. 38 U.S.C. § 1154(b). As set forth above, that an injury such as noise exposure or acoustic trauma occurred in service is not enough to establish service connection. Rather, there must be chronic disability resulting from that injury. In this case, the Board finds that the most probative evidence of record shows that the Veteran did not develop a right ear hearing loss disability during active service or within the first post-service ear. Although the Veteran recently reported in a clinical setting that he has had hearing loss since Vietnam, as set forth above, the contemporaneous record shows that the Veteran’s hearing acuity was tested at service separation and determined to be within normal limits at that time. Moreover, he had an ENT consultation shortly before service separation at which left ear hearing loss was noted, but not right ear hearing loss. Similarly, in other statements submitted in support of the claim, including from his spouse, it was noted that the Veteran only noticed left ear hearing loss in service and in the years immediately following. The Board finds that had the Veteran been experiencing right ear hearing loss in service or within the years immediately following, he would have reported it when he complained of left ear hearing loss. Cf. Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder (citing Fed. R. Evid. 803(7))); see AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Moreover, the Board again notes that an audiometric test performed at service separation showed that the Veteran’s right ear hearing acuity was normal at that time. Under these circumstances, the Board concludes that right ear hearing loss did not manifest in service or within one year thereafter. Although the contemporaneous record shows that the appellant’s right ear hearing loss did not have its onset during active service, and although there is no indication of a disability manifest to a compensable degree within one year of separation from active duty, service connection may nonetheless 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); see also Hensley v. Brown, 5 Vet. App. 155 (1993). In this case, however, the most probative evidence establishes that the Veteran’s current right ear hearing loss disability is not causally related to his active service, including reported noise exposure. As noted, the Veteran was afforded a VA medical examination and the examiner concluded that the current right ear hearing loss was not related to the in-service noise exposure. The examiner provided a detailed rationale for his conclusion, including citations to the medical literature on the topic. The Board recognizes the Veteran’s opinion that his current right ear hearing loss is related to in-service noise exposure, but finds that the examiner’s opinion is more probative on the question, given the examiner’s medical training. The Board has considered the contentions of the Veteran’s representative to the effect that the VA examiner’s opinion is inadequate, as he based his opinion solely on the absence of right ear hearing loss at separation and “did not explain whether there was any medical reason for why such complaints needed to be documented in the service medical records.” As set forth above, however, the examiner explained that the available anatomical and physiologic evidence suggested that delayed post exposure noise induced hearing loss was unlikely. Thus, although the examiner acknowledged the Veteran’s in-service acoustic trauma, he explained that given the normal findings at separation and the available scientific literature, it was less likely than not that the Veteran’s current right ear hearing loss was causally related to that in-service noise exposure. The examiner did not rely solely on the absence of hearing loss at service separation; rather, he relied on the scientific studies regarding delayed onset hearing loss. Thus, the Board finds the examiner’s opinion to be adequate and further notes that there is no other medical opinion evidence of record which contradicts the examiner’s conclusion. For these reasons, the preponderance of the evidence is against the claims of service connection for right ear hearing loss. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REMAND Entitlement to a TDIU is remanded. Since the RO last considered this issue in the March 2015 Statement of the Case, relevant evidence has been associated with the record on appeal, to include VA clinical records dated in October 2015 reflecting that the Veteran receives psychiatric treatment and the results of an August 2016 VA PTSD examination. The Board notes that the Veteran’s service-connected disabilities include PTSD, currently evaluated as 70 percent disabling. Given the Veteran’s contentions regarding his claim for TDIU, this evidence is relevant. Moreover, because this evidence was generated by VA and not submitted by the Veteran or his representative, the automatic waiver provision of 38 U.S.C. § 7105(e) does not apply. In these circumstances, a remand is warranted for initial RO review of this evidence and, if the claim remains denied, issuance of a SSOC to the Veteran and his representative. Moreover, as the record reflects that the Veteran receives ongoing psychiatric care from VA, the RO should associate any additional VA clinical records with the claims file. The matters are REMANDED for the following action: 1. Obtain all outstanding records of VA evaluation and/or treatment of the Veteran since October 2015. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Readjudicate the issues of entitlement to TDIU. If the benefit sought on appeal remains denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative before the claim is returned to the Board. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.Seehusen, Associate Counsel