Citation Nr: 1807439	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  14-15 721A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for bilateral hearing loss. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Jeremy J. Olsen, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Navy from December 1980 to December 1984. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.


FINDINGS OF FACT

1.  The Veteran's left ear hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of his separation from active duty.

2.  The Veteran does not have right ear hearing loss for VA purposes.


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  

Neither the Veteran in this case nor his representative has referred to any deficiencies in either VA's duty to notify or to assist; therefore, the Board may proceed to the merits of the claim.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board).

Analysis

The Veteran asserts that his current bilateral hearing loss is related to his exposure to excessive noise during his active duty service in the Navy.  In his May 2014 substantive appeal, he described the noise to which he was exposed while serving in the Navy, to include a steam turbine, fuel pumps and water pumps.  He indicated that he stood near such equipment for over 12 hours per day, in addition to the fact that serving on an aircraft carrier meant he was exposed, constantly, to loud noises no matter where on the ship he was.  He indicated that his hearing loss was due to this exposure and service connection for bilateral hearing loss was warranted.  The Board notes that the Veteran's in-service noise exposure has been conceded. 

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 may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d).

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. 

Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  VA's Under Secretary for Health has determined that high frequency sensorineural hearing loss is to be considered an organic disease of the nervous system and therefore a presumptive disability. 

Alternatively, service connection may be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology.  However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Pertinent to all claims for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service.  Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).  The Court has found that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (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 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 United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for hearing loss 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 Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service.  Hensley, supra.

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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran's service treatment records show treatment in February 1984 for a right ear infection; otherwise, there are no complaints related to hearing loss.  At separation in December 1984, mild left ear hearing loss was noted at 6000 Hertz.  In a contemporaneous Report of Medical History, the Veteran denied any hearing problems.  

In November 2010, the Veteran underwent an audiology examination at VA.  At that time, testing revealed scores of 25, 20, 20, 45 and 50 decibels at 500, 1000, 2000, 3000 and 4000 Hertz, respectively, in the right ear and 20, 25, 55, 45, and 40 decibels at each such level in the left.  Speech recognition scores were 100 percent in the right ear and 88 percent in the left.  The Veteran was diagnosed with mild to moderate hearing loss, bilaterally, and hearing aids were recommended.  Subsequent medical records show that hearing aids were provided to the Veteran.    

In September 2011, the Veteran underwent a VA audiological examination.  The VA audiologist reviewed the Veteran's file, and noted all in-service testing and the Veteran's separation audiology examination.  Audiology testing at the examination showed scores of 20, 20, 20, 50 and 60 decibels at 500, 1000, 2000, 3000 and 4000 Hertz, respectively, in the right ear, and 25, 20, 50, 55, and 50 at each such level in the left.  Speech recognition scores were 94 percent, bilaterally.  Thus, the Veteran had a hearing loss disability, for VA purposes, in his left ear.  
On the question of etiology, the VA audiologist determined that it was less likely than not that any hearing loss was due to the Veteran's in-service noise exposure.  She noted the in-service shift in hearing at 6000 Hertz, but explained that the shift was inconsequential, as it was less than 15 decibels.  In addition, a post-service, 2003 audiogram showed normal hearing bilaterally.  In support of her conclusion, the audiologist cited to a study which showed that there existed no scientific evidence to support a finding that noise-induced hearing loss would have a delayed onset.  

Right Ear

Based on the evidence above, the Board finds that service connection for right ear hearing loss is not warranted.  The results of the September 2011 VA examination show that the Veteran's right ear hearing is not within the range considered to be a disability for VA purposes.  As noted above, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  As the Veteran's right ear does not meet this criteria, the Board must conclude the Veteran does not currently suffer from such disability.  Without competent evidence of a diagnosis of right ear hearing loss, for VA purposes, there is no disability for which service connection can be granted, and the Board must deny the Veteran's claim. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation); see also Caluza, supra; Brammer, supra. 

Left Ear

Similarly, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for left ear hearing loss. 

In this regard, the Board finds that the opinion of the 2011 VA examiner, which was provided after reviewing the record and examining the Veteran, is highly probative as it reflects consideration of all relevant facts and the examiner provided a detailed rationale for the conclusion reached.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  Specifically, the 2011 VA examiner reviewed the Veteran's complete record, examined him, and provided a fully-supported explanation for her conclusion, including citation to medical studies and references to the Veteran's record.  Notably, there is no medical opinion of record to the contrary.

The Board acknowledges the Veteran's reports that his hearing loss is due to his in-service noise exposure.  Lay witnesses are competent to provide testimony or statements relating to symptoms or facts and events that he or she observed which are within the realm of their personal knowledge.  However, a lay person is not competent to establish that which would require specialized knowledge or training, such as medical expertise.  Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). 

Here, the Board finds that the question regarding the potential relationship between the Veteran's noise exposure and hearing loss is complex in nature.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions); Jones v. Brown, 7 Vet. App. 134, 137 (1994) (where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). 

In this regard, the questions of causation and aggravation of hearing loss involve a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship.  As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Board accords the Veteran's statements regarding the etiology of hearing loss little probative value as he is not competent to opine on such a complex medical question.
Furthermore, the evidence fails to demonstrate that the Veteran's left ear hearing loss manifested within one year of his separation from active duty.  In this regard, while his December 1984 separation examination showed mild hearing loss at 6000 Hertz-a level not used for determining hearing loss for VA purposes-his hearing was otherwise normal.  The Veteran indicated in a contemporaneous Report of Medical History that he had no hearing problems.  Moreover, the clinical evidence of record fails to show that any hearing loss manifested before 2010, over 25 years following service.  Consequently, presumptive service connection, to include on the basis of continuity of symptomatology, for left ear hearing loss is not warranted.  38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker, supra.

In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran's claim.  As such, that doctrine is not applicable in the instant appeal, and his claim must be denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 


ORDER

Service connection for bilateral hearing loss is denied. 




____________________________________________
L.M. BARNARD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs