Citation Nr: 1807831 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-27 678 ) 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: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1972 to August 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The case has since been transferred to the RO in St. Louis, Missouri. In January 2018, the Veteran was afforded a videoconference hearing at the RO in St. Louis, Missouri before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. FINDING OF FACT The Veteran's pre-existing bilateral hearing loss disability, which was documented on his pre-induction examination, was not aggravated by his active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not all been met. 38 U.S.C. §§ 1131, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159, 3.326 (2017). The Veteran contends that he is entitled to service connection for bilateral hearing loss due to noise exposure during service. At the January 2018 hearing, he testified that he was exposed to gunfire, vehicle, and high pitched motor pool noises during service without the use of a protective hearing device. He stated that he was unaware that he had a hearing loss condition at entrance. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, (2012); 38 C.F.R. § 3.303(a) (2017). "To establish a right to compensation for a present disability, a Veteran must show: "(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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Generally, a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C. §§ 1111, 1137 (2012); 38 C.F.R. § 3.304 (b) (2017). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306(a) (2017). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306(b). A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385 (2017). For 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. In this case, service treatment records document a hearing loss disability at entrance. The Veteran's June 1972 pre-induction examination includes audiometric test results for both ears. Puretone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hz were 25, 25, 20, 45 and 40 dB respectively. Puretone thresholds in the left ear at 500, 1000, 2000, 3000, and 4000 Hz were 28, 25, 25, 35 and 38 dB respectively. A hearing loss disability was noted. This is sufficient to qualify as a bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. To the extent that the lay statements from the Veteran argue that he had no hearing loss disability prior to service, the record does not contain any evidence that any of these individuals had the requisite knowledge, skill, or training to diagnose the existence or nonexistence of high frequency hearing loss. His statements are therefore not competent evidence as to whether the Veteran had a bilateral hearing loss disability, as defined by VA regulations. As the audiogram performed at the time of the Veteran's entrance into service documents this disability via audiometric readings, it is the most probative evidence of record, it is found to pre-exist his military service. The record shows a current hearing loss disability. The February 2012 VA examination included audiometric test results for both ears. Puretone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hz were 50, 80, 75, 85, and 85 dB respectively. Puretone thresholds in the left ear at 500, 1000, 2000, 3000, and 4000 Hz were 50, 75, 75, 80, and 80 dB respectively. Speech recognition scores obtained using the Maryland CNC Test were 88 percent for the both ears. Thus, audiometric tests revealed bilateral sensorineural hearing loss. The examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation, then offered opinions as to the nature of the claimed disabilities, accompanied by a rationale. Therefore, this examination is adequate for VA purposes. The Veteran's March 1974 separation examination includes audiometric test results for both ears. Puretone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hz were 35, 10, 10, 25 and 25 dB respectively. Puretone thresholds in the left ear at 500, 1000, 2000, 3000, and 4000 Hz were 45, 10, 22, 22 and 25 dB respectively. It was noted that the Veteran continued to have a right ear hearing deficit. The Veteran has reported exposure to automobile and gunfire noise during service. This is corroborated by his DD Form 214, which indicates that his military occupational specialty was a vehicle mechanic. Thus, he had in-service noise exposure. The remaining question is whether the Veteran's pre-existing bilateral hearing loss disability was aggravated by his active duty military service. In this regard, the Veteran was afforded a VA examination in February 2012. A review of the claims file was noted. The examiner entered conflicting information into the report. In a section labeled Etiology, the examiner answered "No" to the question "If, present, is the Veteran's hearing loss at least as likely as not (50% probability or greater) caused by or a result of an even in military service?" For a rationale, the examiner stated "Hearing loss was not aggravated upon military separation (3-26-1974). In that same section, the examiner answered "Yes" to the question of "Did hearing loss exist prior to service?" and then answered "Yes" for each ear as to the question "If yes, was the pre-existing hearing loss aggravated beyond normal progression in military service." Recognizing this inconsistency, the RO sent for an addendum. In a May 2014 addendum, the examiner stated: The veteran's service medical records were reviewed. Upon enlistment into the military (June 1972) the veteran indicated a mild to moderate hearing loss bilaterally. Upon separation from the military (March 1974) the veteran indicated normal hearing with the exception of a loss at 500 Hz. His hearing improved in both ears significantly from enlistment to separation except for at 500 Hz which worsened. 500 Hz is not typically a threshold that is affected by noise. My opinion states that it is not as least as likely as not that the veteran's hearing loss is related to his military noise exposure. The Board finds that this addendum, together with the February 2012 report, is sufficient and adequate to conclude that the Veteran's pre-existing hearing loss was not aggravated by his active service. The opinion is best read as the Veteran's hearing did not worsen during service beyond its natural progression, even at 500 Hz. This is because the only contention is that exposure to noise caused hearing loss and the examiner's explanation was that 500 Hz. is not a threshold affected by noise. Post-service July 2014 private treatment records document the Veteran's history of working in a labor job for 25 years after service. He reported exposure to workplace noise and the use of ear protection. Notably, at the January 2018 hearing, the Veteran testified to the same. He elaborated that after service he worked in a labor job involving the manufacturing of ammunition but was required to wear a hearing protection device. The Veteran has not submitted medical evidence of in-service aggravation of his pre-existing bilateral hearing loss The only evidence of record suggesting aggravation of his pre-existing bilateral hearing loss disability comes from the Veteran himself. His contention is that exposure to noise during service caused, or aggravated, his hearing loss. During the hearing, the Veteran, through his representative, contended that the change at 500 Hz. is sufficient to show aggravation. While the Veteran is competent to provide statements relating to symptoms or facts of events that he has observed and is within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). The record does not show, nor does the Veteran contend, that he has specialized education, training, or expertise that would qualify him to render a diagnosis or render a medical opinion on this matter. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the issue in this case is outside the realm of common knowledge of a lay person because it involves a complex medical issue that goes beyond a simple and immediately observable cause-and-effect relationship. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). Whether a pre-existing hearing loss disability was aggravated by noise exposure during service is a complex question, not a simple one, and under the facts of this case, not a question that can be answered by a lay person. Medical expertise is required to provide a competent opinion with regard to this question. As such, the Veteran's statements to this effect is lacking in probative value. The most probative evidence is the 2012/2014 medical opinion, as discussed above. For the reasons stated above, the Board concludes that the preponderance of evidence is against a grant of service connection, to include aggravation, for bilateral hearing loss. Thus, there is no reasonable doubt to be resolved in the Veteran's favor, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs