Citation Nr: 1807102 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 13-17 319 ) 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 disability. REPRESENTATION Veteran represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1969 to December 1971 and May 1974 to May 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously remanded by the Board in February 2014, February 2016 and August 2017 for additional development and has since returned to the Board. In December 2017, the Veteran's attorney requested 90 days to submit additional evidence. Later that same month, the attorney provided a statement reflecting that this was their final submission in support of the appeal and they waive any remaining time to send additional evidence or arguments. FINDING OF FACT Bilateral hearing loss disability did not manifest in service, within one year of separation, and is not otherwise etiologically related to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran and his representative have not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Service connection In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the two. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include sensorineural hearing loss, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. 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, or 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 threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155 (1993). Hearing loss disability The Veteran asserts service connection for a bilateral hearing loss disability due to in-service noise exposure from weapons fire without hearing protection, large vehicles, tanks and explosions. The Veteran has a current diagnosis of bilateral hearing loss disability for VA purposes. See e.g., October 2017 VA examination. Initially, the Board finds that presumptive service connection is not warranted as there is no indication that bilateral hearing loss disability manifested in-service or within a year of service. The Board finds that in-service acoustic trauma is shown as the Veteran's reports of noise exposure are consistent with the circumstances of his service as an armor supply clerk, in the Republic of Vietnam from March 1971 to March 1972 and in light of expert and sharpshooter badge decorations. Further, noise exposure has been conceded by the AOJ. See e.g., September 2015 statement of the case. On review of the lay and medical evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's bilateral hearing loss disability is related to service, including exposure to acoustic trauma. Service treatment records are negative for any diagnosis of hearing loss disability and any specific complaints of hearing loss. In this regard, the Veteran denied any ear trouble or hearing loss on entry into his first period of service and had normal hearing for VA purposes. See April 1969 VA enlistment examination. On exit examination in December 1971, the Veteran was assessed with a 15 out of 15 whisper voice test. Though no abnormalities in hearing were indicated, the report does not contain an audiogram. On re-entry to his second period of service, the Veteran denied any ear trouble or hearing loss and had normal hearing for VA purposes. The May 1974 entry examination shows pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 10 5 LEFT 5 5 5 5 5 Periodic hearing conservation audiograms were conducted in January 1977 and March 11, 1977 and reflect hearing within normal ranges. Though threshold shifts were shown (up to 5 decibels poorer and up to 10 decibels better) from January to March, the medical professional indicated that no threshold shifts were "reportable" and noise-induced hearing loss had not been shown. See Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran's March 23, 1977 separation examination shows pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 - 0 LEFT 5 5 10 - 5 Post-service VA records reflect complaints of "clogged ears" with an assessment of cerumen impaction in November 2010. The earliest evidence of a bilateral hearing loss disability as defined by VA was shown in an August 2013 audiology evaluation. See CAPRI records dated October 19, 2017. The passage of time between the Veteran's discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran's claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board notes that the Veteran was afforded VA examinations in November and December 2010 but audiological testing was not conducted or considered unreliable and no etiological opinions were provided. On VA examination in September 2015, the Veteran reported in-service noise exposure from large vehicles and weapons fire and detailed that he only wore hearing protection during basic training. The VA examiner provided a negative nexus opinion and rationalized that the Veteran had normal hearing bilaterally on entry and exit examinations from service in April 1969 and March 1977. There was no significant threshold shift when comparing the above mentioned entry and exit examinations. Further, there were no other significant threshold shifts that occurred during his active duty service. The audiogram is the objective standard for noise injury. Thus, there was no evidence that the Veteran's military noise exposure caused a permanent noise injury affecting hearing sensitivity. On VA examination in October 2017, the Veteran reported consistent reports of noise exposure and a negative nexus opinion was provided. The examiner explained that the Veteran had normal hearing on entry examination into service and the December 1971 exit examination is not valid because it was a whispered voice test (15/15) and not frequency specific. On entry examination into his second period of active duty, he had normal hearing bilaterally. A comparison of the Veteran's entry examinations in 1969 and 1974 to his exit examination in 1977 revealed no significant threshold shifts for either period of active duty. Even considering the Veteran's lay assertions of an in-service onset of hearing problems, the examiner indicated that the objective standard of noise injury is the audiogram and the Veteran's hearing was normal at separation with no significant threshold shifts at any frequency. This suggests that even if the Veteran were exposed to noise while in-service there is no evidence that it caused a permanent noise injury. Based on medical literature it is considered unlikely that a delayed onset hearing loss would occur due to the Veteran's history of military noise exposure. In order for hearing loss to be considered related to service, a significant worsening or threshold shift must be noted when comparing enlistment and exit examinations. Thus, hearing loss is less likely than not caused by his military noise exposure. The examiner distinguished the facts of the Hensley case from the Veteran's, noting that in the Veteran's case, the enlistment audiogram showed normal hearing sensitivity in both ears. The separation audiogram showed normal hearing bilaterally. Thus, there was no significant worsening of this Veteran's hearing thresholds when comparing the results of the separation and enlistment audiograms, unlike the Hensley case. The Veteran has submitted no competent nexus evidence in support of his claim. The Veteran has been allowed ample opportunity to furnish medical evidence in support of his claim, but he has not done so. 38 U.S.C. § 5107(a) (claimant bears responsibility to support a claim for VA benefits). The Veteran is competent, as a lay person, to report that as to which he has personal knowledge. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran is not competent to provide an actual diagnosis or an etiological opinion, as it requires specific medical knowledge and training which he is not shown to possess. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and service connection for bilateral hearing loss disability is not warranted. 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs