Citation Nr: 1808094 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-22 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from September 1960 to September 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In October 2017, the Veteran testified during a hearing before the undersigned Veterans Law Judge, by videoconference; a transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The most probative evidence of record fails to show the Veteran had hearing loss in service, or for many years after service, or that his current hearing loss was otherwise caused by service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in service. 38 U.S.C. §§ 1110, 1154(b), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION II. Bilateral Hearing Loss The Veteran contends that he developed bilateral hearing loss from in-service noise exposure without hearing protection, to include noise from gunfire and other weaponry during training. A. Applicable Law 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). 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. As is the case with most disabilities, the Court has held that service connection can be granted for a current disability such as hearing loss where the Veteran can establish a nexus between his current disability, such as hearing loss and a disease 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. at 159. B. Factual Background and Analysis During his October 2017 Board hearing, the Veteran reported spending days on the rifle range, with bazookas, grenades, pistols, and artillery without hearing protection. He further stated that he noticed a slight hearing loss coming out of service, and that in the years leading up to the present time his wife would tell him to turn down the volume on the television. The Board initially notes that the Veteran currently has bilateral hearing loss that reaches the level of a disability for VA purposes under 38 C.F.R. § 3.385. (January 2013 VA examination). As will be explained herein, giving the Veteran the benefit of the doubt, the Board finds that service connection for bilateral hearing loss is warranted. The Veteran's service treatment records document a number of complaints, but none for hearing loss. The August 1960 enlistment evaluation does not include a hearing evaluation other than whispered voice, which revealed an absence of any subjective hearing loss. In his June 1963 separation examination, the denied experiencing any ear, nose, or throat trouble, and he denied having any illness or injury other than those already acknowledged. The audiogram at that time failed to show the presence of any hearing loss, and no abnormality of the ears or ear drums was noted on clinical evaluation. The Veteran's first post-service hearing evaluation of record is an April 2012 private audiogram documenting bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385. In an April 2012 letter accompanying this, the private audiologist, Kristen Huizdos, opined that based on information from the Veteran regarding acoustic trauma and noise in service, "it is possible that the acoustic trauma/noise exposure he described from military service could have caused hearing loss." In March 2013, a VA examiner diagnosed the Veteran with sensorineural hearing loss. The examiner noted a report by the Veteran of gradual decrease in hearing since service. He noted that the Veteran primarily served in driving school instruction on active duty, but that acoustic trauma was conceded. After service, the Veteran reported he worked in security and qualified his weapons every 6 months without hearing protection. He opined that "as review of SMRs [service medical records] reveal normal hearing at RAD [release from active duty], hearing loss is less likely as not caused by or a result of military service." The Board notes that the examiner noted the June 1963 separation audiological findings, but they were not consistent with the findings indicated in the service treatment records. In an April 2013 letter, the April 2012 private audiologist wrote, Based on information provided by [the Veteran], the acoustic trauma/noise exposure he described while in military service most likely than not caused his hearing loss. Patient reports the he was on the firing range with rifles, machine guns, and other artillery. At that time, ear protection from the noise was not provided. Therefore, it is at least as not his hearing loss is the result of exposure to excessive sound while he was on active military duty. In his June 2014 VA Form 9, the Veteran clarified that as opposed to what was reported in the March 2013 VA examination, he had actually worn hearing protection on the shooting range while with the police department and in his security career after service, as such hearing protection was required. The evidence in this case incudes the Veteran's contentions and statements; the service records; the VA examination report and opinion; and the post service private audiologist reports and letters dated since 2012. The Board accords little probative weight to the Veteran's contentions and statements. Although his exposure to the sounds made by the weapons he identified may be conceded, none of his service treatment records reflect any complaints of hearing loss, and when he was being discharged from service, he affirmatively denied any ear trouble or that he experienced any injuries other than those he had already disclosed. In addition, his hearing was formally tested, and no hearing disability was disclosed. This casts doubt on his recent recollection of having hearing loss in service. In addition, the Veteran has not consistently reported his use of hearing protection post service, where he was employed for years in police/security and was reportedly required to qualify with his weapon every 6 months. Given these manifest problems with memory, the Veteran's statements concerning his relevant medical history are accorded little weight. With respect to the post service private audiology reports, these are dated since 2012, nearly a half century after service. They show hearing loss. As to whether that disability is due to service, the provider first only opined it was possible. A mere possibility is not sufficient to establish entitlement to benefits. A year later, the provider re-phrased the opinion, as quoted above. Even ignoring the problem with syntax in the later opinion, the examiner did not explain how noise exposure in service would produce a hearing loss disability, where that disability was specifically investigated at service discharge and not found. Likewise, if it was noise exposure that produced the disability, the examiner did not address the noise exposure acknowledged by the Veteran post service. In view of this, little probative weight is accorded the private audiology reports and opinions. The VA examination report and opinion show the Veteran has the claimed disability, 50 years post service. After considering the evidence before her, acknowledging in-service noise exposure, post service noise exposure and pointing to the service records that showed the Veteran did not have a hearing loss disability when he separated from service, the examiner considered it unlikely the Veteran's hearing loss was caused by or the result of military service. While perhaps imperfect, the Board finds the VA examiner's opinion to be the most probative nexus evidence. It is an opinion offered by one qualified in the relevant discipline, only it considers all the relevant facts, and its conclusion squares with the most reliably known facts; although there was in-service noise exposure, the Veteran did not have hearing loss at service separation, there was post service noise exposure and the condition was first shown decades after service, with the Veteran reporting that his was a gradual decrease in hearing acuity post service. In these circumstances, the Board finds the greater weight of the evidence is against the claim, and therefore, service connection for bilateral hearing loss is denied. (CONTINUED ON NEXT PAGE) ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs