Citation Nr: 1806402 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-24 140 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. I. Sims, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1976 to September 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which in pertinent part, denied service connection for bilateral hearing loss. FINDINGS OF FACT 1. The weight of the competent and credible evidence of record supports a finding that the Veteran has right ear hearing loss as a result of his active service. 2. The competent and probative evidence of record weighs against a finding that the Veteran has left ear hearing loss. CONCLUSIONS OF LAW 1. Criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.385 (2017). 2. Criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. With respect to the duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records, VA treatment records, and private treatment records have been obtained, to the extent available. Additionally, the Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge. During his February 2017 Board hearing, the Veteran requested an additional 60 days to submit a private nexus opinion, however no new information was provided to the Board and the Veteran has not requested more time to submit any evidence. The Veteran was afforded multiple VA examinations in connection with his claim. Upon review of the evidence, the Board finds that the examination reports indicate that the examiner reviewed the Veteran's claims file and past medical history, recorded his current complaints, conducted appropriate evaluations, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The existing medical evidence of record is therefore adequate for the purpose of rendering a decision in the instant appeal. 38 C.F.R. § 4.2 (2015); Barr, 21 Vet. App. 303 (2007). Neither the Veteran, nor his representative objected to the adequacy of the examinations. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). The Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, that the record includes adequate, competent evidence to allow the Board to decide this matter, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Service Connection The Veteran filed a claim for service connection of his bilateral hearing loss in May 2010. The Veteran asserts that in-service noise exposure from generators while working in field artillery, combined with in-service measles, lead to his current hearing loss disability. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131. Service connection can be established by evidence that shows "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." 38 C.F.R. § 3.310(a) (2016); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The nexus requirement, in pertinent part, can be established through objective medical evidence; the application of statutory presumptions for chronic diseases like sensorineural hearing loss, when manifested to a compensable degree within a year of separation from service; or based on a continuity of symptomatology. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition to the general requirements for service connection, there are also specific requirements regarding what constitutes a hearing loss disability under VA law. The threshold for normal hearing is from 0 to 20 decibels (dB). Hensley v. Brown, 5 Vet. App. 155 (1993). For the 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, 4000 Hz is 40 dB or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. As an initial matter, the Board acknowledges that the Veteran is currently diagnosed with otosclerosis in the right ear. Prior to this diagnosis, the Veteran was diagnosed with bilateral hearing loss characterized by mild, mixed hearing loss (a combination of sensorineural and conductive hearing loss) in the right ear, and sensorineural hearing loss in the left ear. Notably, the Veteran does not experience hearing loss in the left ear for VA purposes, as no in-service or post-service testing of record indicates the required auditory thresholds. Additionally, service treatment records indicate the Veteran's military occupational specialty (MOS) is indicative of in-service noise exposure as well as rubella. Therefore, the board finds the evidence of record is sufficient to establish the existence of a current disability in the right ear and an in-service incurrence of an injury. As such, the remaining determination is whether the record demonstrates the nexus element of service connection. Right Ear Hearing Loss In November 2010, a VA examiner found that the Veteran's right ear hearing loss was due to otosclerosis. This finding was based on a temporal bone CT, which indicated, in pertinent part, a 2.0mm lucency anterior to the oval window on the right consistent with fenestral otosclerosis. In December 2010, otolaryngology physician's assistant (PA), Mr. Lewicki, submitted a statement opining that the Veteran's documented bilateral sensorineural hearing loss was "likely induced by loud noise repetitive exposure i.e., military service ear exposure to generators and 8-inch howitzers firing." Mr. Lewicki noted that the Veteran experienced bilateral asymmetrical sensorineural hearing loss along with a right ear conductive component loss that would logically be presumptive otosclerosis based on tympanogram testing that indicated normal middle ear function and normal ear drums. In December 2014, otolaryngologist, Dr. Myers, submitted a statement opining that while the Veteran has mixed hearing loss, it "cannot be determined with certainty at this point that it is from otosclerosis." In June 2015, after reviewing the available medical evidence and the Veteran's assertions, a VA audiologist opined that "it is less likely than not that the Veteran's hearing loss due to otosclerosis is correlated to his rubella in 1981 while in the military." The examiner noted that while rubella often results in sensorineural hearing loss, such loss usually occurs immediately, yet immediate hearing loss was not demonstrated on audiograms for the six years following when the Veteran contracted the measles. Additionally, the examiner noted that more recent medical research was unable to substantiate medical journals that previously found a correlation between viruses and the development of otosclerosis. The Board acknowledges there are conflicting medical opinions of record regarding the nexus element in this case. As such, an otolaryngologist opinion was requested. In January 2018, a VA otolaryngologist found it as least as likely as not that the Veteran's hearing loss in the right and left ears began during or was otherwise caused by his military service, including as a result of rubella therein. As support for his opinion, the doctor noted significant threshold shifts between the Veteran's entrance and exit examinations across all frequencies, which could be attributed to noise exposure as well as secondary to rubeola (measles) infection. The doctor further noted medical studies that indicated hearing loss as a result of adult-onset rubella. Lastly, the doctor noted that the record contains evidence that the Veteran's otosclerosis caused his hearing loss. As support for this, the doctor, noted a January 2017 audiogram and evidence of a viral etiology of otosclerosis as an inflammatory vascular reaction of the otic capsule initiated or caused by the viruses of the measles, rubella and mumps. The Board finds that the evidence demonstrates a medical nexus between the Veteran's current right hearing loss and his in-service noise exposure and measles condition. As such, service connection is warranted for right ear hearing loss. Left Ear Hearing Loss Audiometric testing from the Veteran's time in service shows the following: LEFT EAR 500 1000 2000 3000 4000 June 1975 15 5 0 / 15 Aug 1976 5 5 5 / 5 May 1982 15 5 5 5 15 Feb 1983 15 5 5 5 15 June 1987 15 10 5 15 20 Speech recognition scores were not provided during this period of service. The also Veteran served as a reservist. Pure-tone threshold testing from this period revealed: LEFT EAR 500 1000 2000 3000 4000 Feb 1991 10 5 5 5 10 Jan 1993 15 10 0 5 10 Dec 1997 30 10 0 10 10 Speech recognition scores were not provided during this period of service. The Veteran received a private audiological evaluation in November 2009. Of record is an audiology report with results in graphical form, which are clear and the Board may review them. In this regard, the Board observes that in Kelly v. Brown, 7 Vet. App. 471 (1995), the Court determined that the Court could not interpret the results of an audiogram because interpretation required a factual finding, which is not the role of the Court in the first instance. However, the Court implied that the Board, as the finder of fact, is empowered to make factual findings in the first instance. In this role, the Board has reviewed the graphical findings of the audiological report and determined that the results are as follows, with pure tone thresholds in decibels: HERTZ 500 1000 2000 3000 4000 LEFT EAR 15 20 5 10 5 Speech audiometry revealed speech recognition ability of 100 percent in the right and the left ears. The Veteran experienced similar pure tone thresholds at audiological treatment follow-up in February, August, and October 2010. The Veteran received a VA examination in August and October 2010. Pure-tone threshold in October 2010 revealed: HERTZ 500 1000 2000 3000 4000 LEFT EAR 5 15 5 25 35 Speech audiometry revealed speech recognition ability of 98 percent in the right and the left ears. Hearing loss for VA purposes requires an auditory threshold in any of the frequencies (500, 1000, 2000, 3000, 4000 Hz) at 40 dB or greater; or auditory thresholds for at least three of the frequencies (500, 1000, 2000, 3000, or 4000 Hz) at 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran's medical evidence does not demonstrate the required auditory thresholds. As such, the Veteran does not experience hearing loss for VA purposes in his left ear and service connection is not warranted. Therefore, while service connection for bilateral hearing loss is not warranted, service connection for right ear hearing loss is granted. ORDER Service connection for right ear hearing loss is granted. Service connection for left ear hearing loss is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs