Citation Nr: 1808414	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  14-30 158	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel


INTRODUCTION

The Veteran served on active duty from November 1956 to November 1960.

This matter comes before the Board of Veterans' Appeals (Board) from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In that rating decision the RO denied service connection for bilateral hearing loss. In a January 2014 rating decision, the RO continued the denial of service connection for hearing loss.

In November 2017 the Veteran had a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). 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).


FINDINGS OF FACT

1. Noise exposure during the Veteran's service was not followed by disabling hearing impairment during service. 

2. Disabling bilateral hearing impairment shown on testing long after service is not attributable to the noise exposure or other events during service.


CONCLUSION OF LAW

Current disabling bilateral hearing loss was not incurred or aggravated in service, and may not be presumed to be service connected. 38 U.S.C. §§ 1112, 1131,1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017). Under the notice requirements, VA is to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2017). 

In Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a Board hearing fulfill duties to (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked.

The RO provided the Veteran notice in letters issued in 2010 through 2016. In those letters, the RO notified him what information was needed to substantiate claims for service connection. The letters also addressed how VA assigns disability ratings and effective dates.

In the November 2017 Board hearing, the undersigned VLJ fully explained the issues and suggested the submission of evidence that may have been overlooked. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), and has not identified any prejudice in the conduct of the hearing. The Board therefore finds that the VLJ who conducted the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in providing further notice during the hearing constitutes harmless error.

The claims file contains service medical records, post-service medical records, and reports of VA medical examinations. The examination reports and other assembled records are adequate and sufficient to reach decisions on the issue on appeal. 

The Board finds that the Veteran was notified and aware of the evidence needed to substantiate the claim, and the avenues through which he might obtain such evidence, and the allocation of responsibilities between him and VA in obtaining evidence. The Veteran actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so.

Hearing Loss

The Veteran reports that he had considerable noise exposure during service. He contends that his current bilateral hearing loss had onset during service or is otherwise attributable to the noise exposure during service. He states that his noise exposure during service was from three years of daily duties on the flight line of an Air Force Base, and from a chow hall explosion that occurred near him.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. 3.303. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Court has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection for certain chronic diseases, including nervous system diseases such as sensorineural hearing loss, may be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of discharge from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.

For VA disability benefits purposes, impaired hearing is considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

The Court has held that 38 C.F.R. § 3.385 does not preclude service connection for current hearing disability where hearing was within normal audiometric testing limits at separation from service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Court explained that, when audiometric test results do not meet the regulatory requirements for establishing a "disability" at the time of a veteran's separation, the veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. In addition, the Court cited a 1988 medical treatise that stated that the threshold for normal hearing was from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. 

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The Veteran was in service before a change in the standards for reporting results of hearing testing. When necessary, data under ASA standards will be converted to 

ISO-ANSI standards as follows:

Hertz
250
500
1000
2000
3000
4000
6000
8000
add
15
15
10
10
10
5
10
10

In the reports of audiological evaluations of the Veteran in April 1959, July 1960, and October 1960, it is unclear whether the thresholds were recorded using ASA units or ISO-ANSI units. As the evaluations were done before 1967, the Board is assuming that the ASA standard was used. The Board will convert the thresholds from ASA to ISO-ANSI units. None of those evaluation reports included speech recognition scores.

On examination of the Veteran in November 1956, for entrance into service, audiological evaluation was not performed. His hearing was tested only by whispered voice testing. The Veteran's service personnel records reflect that his military occupation specialty was Bomber Navigation Systems Mechanic. In hearing conservation data collected in April 1959, after conversion from ASA to ISO-ANSI units, puretone thresholds, in decibels, were as follows: 





HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
10
10
5
LEFT
15
10
10
10
5

In hearing conservation data collected in July 1960, after conversion from ASA to ISO-ANSI units, puretone thresholds, in decibels, were as follows: 





HERTZ



500
1000
2000
3000
4000

RIGHT
20
10
15
5
0
LEFT
15
15
5
0
-5

In a medical history completed in October 1960, for separation from service, the Veteran marked no for any history of ear trouble. On the October 1960 separation examination, no measurements were provided for the thresholds at 3000 Hertz. For the frequencies that were measured, after conversion from ASA to ISO-ANSI units, puretone thresholds, in decibels, were as follows: 





HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
10

5
LEFT
20
10
15

5

Testing of the Veteran's hearing during service, with conversion of the test results from ASA to ISO-ANSI units, did not show hearing impairment that is considered a disability for VA benefits purposes.  

The Veteran's claims file does not contain any record of testing of his hearing during the year following his separation from service, so there is no basis to presume service connection for any current sensorineural hearing loss.

In May 2011 the Veteran filed a claim for service connection for hearing loss. In September 2011 he wrote that during service he had excessive exposure to jet engine noise.

On VA audiology examination in October 2011, the Veteran reported that in basic training an explosion occurred within 100 feet of him. He stated that in his service duties as a mechanic he was exposed daily to jet engine noise, and did not have hearing protection. He stated that after service he owned an excavating company. He reported that in that work he had minimal noise exposure and he consistently used hearing protection. He stated that in recreational gun use after service, he did not use hearing protection when hunting, but used it during target practice. He reported that presently he had trouble hearing speech.

On audiological evaluation, puretone thresholds, in decibels, were as follows: 





HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
45
55
60
LEFT
20
35
65
65
70

Speech recognition scores were 92 percent in the right ear and 96 percent in the left ear. The examiner found that the Veteran had bilateral sensorineural hearing loss.

The 2011 examination showed bilateral hearing impairment that is considered a disability for VA disability benefits purposes. The examiner reported having reviewed the Veteran's claims file. The examiner stated that the Veteran's military occupation specialty as a Bomber Navigation Systems Mechanic warranted concession of a high probability of hazardous military noise exposure. The examiner expressed the opinion that it is less likely than not that the Veteran's current hearing loss is caused by or a result of his noise exposure in service.  It was acknowledged that the Veteran was exposed to noise during service to include jet engine noise on a daily basis.  It was also explained that the Veteran's enlistment and discharge examinations show normal hearing at all frequencies bilaterally.  Further, he was noted to have recreational noise exposure as a hunter for 40 years.

In a March 2013 history, the Veteran wrote that he had experienced hearing loss since 1959 or 1960. He related that his hearing loss had worsened in recent years. He reported during service he worked on the flight line, repairing bombing and navigation equipment on airplanes. He stated that he was exposed to loud noise from jet aircraft engines, and that hearing protection was not provided. He indicated that he had not worn hearing aids, had not received hearing aids from VA, and had not purchased hearing aids from a facility in the community. 

On VA examination in March 2013, audiological evaluation again showed bilateral hearing impairment that is considered a disability for VA disability benefits purposes. An audiologist prescribed bilateral hearing aids. The Veteran received the hearing aids in May 2013. He had audiology and hearing aid follow-up in later in 2013 and in 2014.

In February 2014, the Veteran wrote that he had experienced difficulty hearing for years.

In the November 2017 hearing, the Veteran reported that early in service there was an explosion in a chow house as he and others were approaching it. He stated that he and others were knocked down, and a person inside the building was killed. He expressed his belief that his hearing loss began with the explosion. He stated that later in service he was exposed to noise from jet aircraft engines as he performed his duties as a mechanic on equipment used on the aircraft. He indicated that he worked on the flight line every day for three years. He reported that he did not receive or wear hearing protection. He stated that he did not remember whether his hearing was tested during service or at separation from service.

The Veteran reported that after service he owned a construction business. He stated that he usually worked indoors, but wore hearing protection when he operated equipment. He stated that presently he had considerable difficulty hearing speech and television. His wife reported that from when she first knew him, within a few years after his separation from service, she found that when she was not facing him he often missed what she said. She indicated that his hearing had worsened over time. The Veteran reported that, years before the 2017 hearing, he went to a VA facility and reported hearing problems. He stated that he received information and forms and he did not pursue the issue further. He indicated that he obtained hearing aids from a private source. He expressed uncertainty as to when those events occurred, indicating that it may have been 30 or 40 years ago.

Considering the Veteran's duties in service, the Board accepts that he was exposed to considerable noise, including from jet aircraft engines. However, testing during and at the end of service is evidence that, despite the noise exposure, his hearing was normal.  (VA considers normal hearing to be from zero to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993).)  There is no professional opinion supporting a connection between his noise exposure in service and the hearing loss shown on testing long after service. The 2011 VA examiner opined against the likelihood of a connection. The examiner based that opinion on the normal hearing on testing at separation from service and the long gap between service and the findings of hearing loss by testing. It also considered the Veteran's history of noise exposure in service. That opinion has substantial persuasive weight. The Board concludes that the greater persuasive weight of the evidence is against the onset of disabling hearing impairment during service or within one year of service separation, and is against a connection between the noise exposure during service and the current hearing impairment disability.  The Veteran's lay statements regarding the etiology of hearing loss are acknowledged but are outweighed by the medical evidence in this case which establishes that bilateral hearing loss is not related to service.  Thus, the preponderance of the evidence is against service connection for his hearing loss.


ORDER

Entitlement to service connection for bilateral hearing loss is denied.




____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs