Citation Nr: 1808704	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  16-07 505 	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUE

Entitlement to service connection for bilateral hearing loss. 


REPRESENTATION

Veteran represented by:	Virginia Department of Veterans Services


ATTORNEY FOR THE BOARD

S. A. Prinsen, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Air Force from February 1954 to October 1957.  

This matter is before the Board of Veterans' Appeal (Board) on appeal of a November 2014 rating decision of the Providence, Rhode Island, Regional Office (RO) of the Department of Veterans Affairs (VA).  

In September 2017, the Board remanded the case for further development, which has been completed.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

The evidence of record does not establish that the Veteran's bilateral hearing loss was incurred in, or is otherwise attributable to, his active service 


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1110, 1131, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2017).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify and Assist

In the instant case, the Board finds that the VA satisfied its duty to notify under the VCAA by virtue of the Veteran's submission of his claim of service connection for bilateral hearing loss through the fully developed claim program.  Under this framework, a claim is submitted in a "fully developed" status, limiting the need for further development of the claim by VA.  When filing a fully developed claim, a Veteran submits all evidence relevant and pertinent to his claim, other than service treatment records and treatment records from VA medical centers, which will be obtained by VA.  Under certain circumstances, additional development, including obtaining additional records and providing the Veteran with a VA medical examination, may still be required prior to the adjudication of the claim.  See VA Form 21-526EZ, received February 13, 2014.

The fully developed claim form includes notice to the Veteran of what evidence is required to substantiate a claim for service connection, and of the Veteran's and VA's respective duties for obtaining evidence.  The notice also provides information on how VA assigns disability ratings and effective dates.  See id.  Thus, the notice that is part of the claim form submitted by the Veteran satisfies the duty to notify with regard to his service connection claim.

II.  Service Connection 

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, 1131; 38 C.F.R. § 3.303.  "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. Shineski, 557 F.3d 1362, 1366 (Fed. Cir. 2010)(quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  

Impaired hearing is considered a disability for VA purposes 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 Veteran is currently diagnosed with bilateral sensorineural hearing loss, an organic disease of the nervous system, which is listed as a "chronic disease" under 38 C.F.R. § 3.309 (a). 

For a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for sensorineural hearing loss, if the disability manifested to a compensable degree within one year of discharge from service.  See 38 U.S.C. § 1101, 1112, 1113 (2012); 38 C.F.R. § 3.307, 3.309 (2017).  Where the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, service connection may be established by a continuity of symptomatology after discharge.  38 C.F.R. § 3.303 (b) (2017).  The presumption relating to a continuity of symptomatology can be used only in cases involving conditions recognized as chronic under 38 C.F.R. § 3.309 (a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The medical evidence of record shows that the Veteran currently has bilateral hearing loss that is considered disabling for VA purposes.  The Veteran alleges this hearing loss is due to noise exposure during active service.  

The Veteran's military occupational specialty (MOS) was jet engine mechanic.  The Veteran provided several statements detailing his noise exposure as a jet mechanic.  Based on the Veteran's statements and his MOS, the Veteran was exposed to acoustic trauma during service.  However, the Veteran's service treatment records do not contain any diagnoses of hearing loss or complaints or treatments for hearing loss.  Additionally, just prior to discharge from active service, the Veteran underwent audiometric testing, which revealed hearing within normal limits.  His puretone thresholds, in decibels, were as follows:


HERTZ

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

According to the record, the Veteran did not seek treatment for hearing loss until 2005.  In October 2012, the Veteran underwent a VA examination, which showed hearing loss for VA purposes.  His puretone thresholds, in decibels, and Maryland CNC results were as follows:


HERTZ
CNC

500
1000
2000
3000
4000
%
RIGHT
35
35
45
60
65
76
LEFT
35
35
45
50
55
76
 
The Veteran attended another audiological VA examination in October 2017.  His puretone thresholds, in decibels, and Maryland CNC results were as follows:


HERTZ
CNC

500
1000
2000
3000
4000
%
RIGHT
50
50
65
75
70
68
LEFT
50
45
60
70
70
76

The VA examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran's current hearing loss is caused by or a result of his military noise exposure.  The examiner noted that the Veteran's hearing was normal at the time of discharge and that the Veteran first sought treatment for hearing loss in 2005, which is approximately 50 years after separating from service.  Also noted was the Veteran's occupational history after active service, which included construction work, carpentry, driving a truck, and building homes.  The VA examiner stated that hearing loss due to noise occurs at the time of exposure and not subsequently.  See C&P Exam October 2017.  

Therefore, the competent and probative medical evidence does not establish a relationship between the Veteran's current diagnosis and his active service.  As noted by the VA examiner in the rationale, the Veteran had normal hearing at the time of his discharge from active service in 1957 and did not seek treatment for hearing loss until 2005.  The Veteran is competent to report his hearing loss symptoms and exposure to noise in service and the Board considered his statements.  Layno v. Brown, 6 Vet. App. 465 (1994).  However, the determination of whether the Veteran's current hearing loss is related to in-service noise exposure is a complex medical question that requires expertise.  Jandreau v. Nicholson, 492 F.3d. 1372 (2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  As such, the Board gives greater probative weight to the opinion of the October 2017 VA examiner. 

The evidence does not show in-service onset of hearing loss, sensorineural hearing loss to a compensable degree within a year of separation, a continuity of symptomatology since service, or a nexus between current hearing loss and in-service noise exposure.  As such, service connected for bilateral hearing loss is not warranted.


ORDER

Entitlement to service connection for bilateral hearing loss is denied.



____________________________________________
DONNIE R. HACHEY 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs