Citation Nr: 1806598 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-12 388 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. I. Tissera, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to November 1967. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in March 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. When this case was last before the Board in March 2015, it was remanded for further development. FINDING OF FACT Hearing loss for VA purposes was not manifested during active service or within one year from the date of separation from service and the preponderance of the competent evidence demonstrates that current hearing loss is not related to active service. CONCLUSION OF LAW A bilateral hearing loss disability was not incurred in or aggravated by active service, and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The duty to notify has been met. Neither the Veteran nor his representative has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service and VA treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. VA is unaware of any outstanding pertinent records which have not been associated with the claims file. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided with VA examinations in February 2012, April 2013, and May 2016. The examiners reviewed the medical evidence of record in conjunction with the examination and conducted a thorough medical examination of the Veteran. The Veteran's pertinent symptomatology was recorded sufficiently to accurately adjudicate the claim. Based on the foregoing, the Board finds the examination reports to be thorough, complete, and sufficient base upon which to reach a decision on the Veteran's claim. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007). Since VA has obtained all relevant identified records and provided an adequate medical examination, its duty to assist in this case is satisfied. II. Service Connection for Bilateral Hearing Loss In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after separation from service is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain listed chronic diseases may be awarded on a presumptive basis and will be presumed to have been incurred during active service, even though there is no evidence of the disability during service, if such disability became manifest to a compensable degree within one year of separation from active duty. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. While hearing loss is not a disease listed under 38 C.F.R. § 3.309(a), organic diseases of the nervous system are listed as a disability subject to presumptive service connection. An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000)(evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b). In addition to the basic service connection principles outlined above, service connection for hearing loss disability is not warranted unless the claimed hearing loss is of a particular level of severity. For purposes of applying the laws administered by VA, hearing impairment will be considered a disability when the thresholds 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. The Veteran asserts in his claim submissions and statements that he sustained acoustic trauma when he was exposed to 155 howitzers without hearing protection while in service as a field artillery crewman during Vietnam. Due to his occupational specialty, the Board finds the Veteran was exposed to acoustic trauma during his active duty service. The Veteran's service treatment records (STRs) contain several medical examination reports that include audiograms. An audiogram from October 1965 shows hearing within normal limits: HERTZ 1000 2000 3000 4000 Avg. RIGHT -10 5 10 15 5 LEFT -5 -10 5 5 -1.25 Because this exam was conducted prior to October 31, 1967 the results must be converted from ASA units to ISO units. The converted pure tone thresholds, in decibels, are: HERTZ 1000 2000 3000 4000 Avg. RIGHT 0 15 20 20 13.8 LEFT 5 0 15 10 7.5 The Veteran did not complain of any hearing loss at that time and his ears were evaluated as normal. During the Veteran's separation exam in November 1967, the audiogram once again shows hearing within normal limits: HERTZ 1000 2000 3000 4000 Avg. RIGHT 5 0 -- 5 3.33 LEFT 10 5 -- 0 5 Although this exam was conducted after October 31, 1967, the Veteran's audiogram results were recorded in ASA units and must be converted to ISO units. The converted pure tone thresholds, in decibels, are: HERTZ 1000 2000 3000 4000 Avg. RIGHT 15 10 -- 10 11.7 LEFT 20 15 -- 5 13.3 There are no remarks or notes indicating the Veteran complained of hearing loss during the separation exam. The Veteran's service treatment records do not show any complaints, treatment, or diagnosis for hearing loss during service, and his hearing is found to be within normal limits at entry and separation of service. At the time of a February 2012 VA examination, the Veteran's audiogram results were: HERTZ 1000 2000 3000 4000 Avg. RIGHT 25 35 50 40 38 LEFT 25 50 50 50 44 His speech discrimination scores were 100 percent, bilaterally. His acoustic immittance, ipsilateral acoustic reflexes, and contralateral acoustic reflexes were normal, bilaterally. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss, which satisfies the first element of service connection. The examiner opined that the Veteran's hearing loss is not as likely caused by or a result of an event in military service. The opinion was based on the Veteran's hearing at the separation exam which was within normal limits and that the Veteran denied any ear trouble or hearing loss at that time. Furthermore, the Veteran denied any significant hearing loss, but his wife often complained he has difficulty hearing at the time of the examination. The examiner also observed that the Veteran also reported working in construction prior to and after his military service. In April 2013, the examiner provided an addendum opinion, stating it was not as likely that the Veteran's military noise exposure lead to the current finding of hearing loss. No significant shifts in hearing were noted from the time the Veteran entered until he separated from service. Citing the 2006 report, Noise and Military Service - Implications for Hearing Loss and Tinnitus, by the Institute of Medicine, it was observed that there was no scientific basis on which to conclude that a hearing loss which appeared many years after the noise exposure could be causally related to that noise exposure if hearing was normal immediately after the exposure; "There is not sufficient evidence ... to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise. ... [B]ased on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur." This study, the examiner stated, remained the definitive consensus in this matter. The Veteran was afforded another VA examination in May 2016 and had the following audiogram results were obtained: HERTZ 1000 2000 3000 4000 Avg. RIGHT 25 35 50 50 40 LEFT 25 55 55 60 49 Speech discrimination scores were 94 percent in the right ear and 96 percent in the left ear. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss. The examiner opined that it is less likely than not that the Veteran's hearing loss was caused by or a result of an event in military service. Upon reviewing the Veteran's entrance and separation examinations, it was noted there was a difference between the thresholds in both ears between the two tests. However, the examiner opined the difference is not significant and does not represent a threshold shift. At the Veteran's separation exam, he denied having any hearing loss or ear problems. When asked about when his hearing loss onset, the Veteran was vague, stating it was "forever ago," which is understandable given the time lapse since service, but the examiner noted this brought into question when the Veteran began to experience hearing problems. He denied a medical history of hearing problems and admitted to post military noise exposure from construction work, which could provide a nexus for a post-military onset. Furthermore, the examiner cited to a military hearing loss study that stated that the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely. The Board acknowledges and concedes the Veteran was exposed to noise trauma during service, as the Veteran is competent to report the events that occurred in service. Layno v. Brown, 6 Vet. App. 465 (1994). The Board also finds the Veteran's statements to be credible, as his Form DD-214 notes his MOS as a field artillery crewman. However, the preponderance of the evidence is against the claim for service connection for hearing loss. The medical evidence does not show in-service onset of hearing loss or sensorineural hearing loss to a compensable degree within a year of separation. There is no competent evidence of record documenting the presence of hearing loss for VA purposes within one year of the Veteran's discharge. The Veteran is not competent to provide evidence of audiometric readings based on his lay observations. Based on the Veteran's medical history and lay statements, a continuity of symptomatology since service is not established. He denied experiencing hearing loss at separation and was vague as to the onset of the disorder. The medical literature cited does not support finding a delayed hearing loss onset many years after the noise exposure. The preponderance of the evidence weighs against finding that there is a nexus between the Veteran's current hearing loss and in-service noise exposure. Thus, there is no doubt to be resolved and service connection for hearing loss is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ G. A. Wasik Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs