Citation Nr: 18100167 Decision Date: Archive Date: 03/28/18 DOCKET NO. 13-09 297 DATE: ISSUES DECIDED: 1 ISSUES REMANDED: 0 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss was first demonstrated years after active service, and is unrelated to any in-service incident or event, or otherwise related to active service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from June 1968 to March 1970. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In April 2015 Board decision, this matter was remanded for additional development to include scheduling the Veteran for a VA examination. As the requested development has been completed, this matter has returned to the Board for appellate consideration. Duty to Notify and to Assist VA is required to notify a 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, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2017). Copies of compliant VCAA notices were located in the claim’s file. VA’s duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection, generally Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. § 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303 (a), 3.304 (2017). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical ‘nexus’ requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (a) (2017). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b) (2017). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue. 1. Entitlement to service connection for bilateral hearing loss. The Veteran contends that he is entitled to service connection for bilateral hearing loss resulting from exposure to loud noise/acoustic trauma from mortar fire during active service. After a thorough review of the evidence, the Board finds that the Veteran’s bilateral hearing loss was not incurred in or otherwise related to his active service. Review of the Veteran’s service treatment records (STRs) reveals at induction, in June 1968, hay fever and childhood asthma were reported, however, the Veteran was deemed qualified for service. In December 1968, the Veteran complained of ear irritation. A treatment note indicated that the left ear was plugged for several days. In January 1970, the Veteran reported an ear ache and evidence of mild edema in the exterior canal was noted. Report of medical examination, at separation in March 1970, the Veteran reported that he was in good health. No complaints of hearing loss were noted or reported. According to military personnel records, the Veteran worked in as a mortar squadron leader. He was awarded a combat infantry badge for his honorable service. No post service exposure to acoustic trauma has been reported. Under the laws administered by VA, a certain threshold level of hearing impairment must be shown in order for hearing loss to be considered a disability. Impaired hearing will be considered a disability when the auditory threshold in any of the frequencies at 500, 1,000, 2,000, 3,000 or 4,000 Hertz is 40 decibels (dB) or greater; or when the auditory threshold for at least three of the frequencies at 500, 1,000, 2,000, 3,000 and 4,000 Hertz are 26 dB or greater; or when speech recognitions scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385 (2017). On the authorized audiological evaluation in September 2011, pure tone thresholds, in dB, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 30 60 60 LEFT 5 10 30 45 60 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. The average decibel loss was 39 in the right ear and 31 in the left ear. Based upon the audiological evaluation, the Veteran suffers from bilateral hearing in both ears. Despite the aforementioned diagnoses, the examiner opined that it was less likely as not that the Veteran’s bilateral hearing loss was caused by or otherwise related to active service. In reaching the stated conclusion the examiner noted that there is no evidence that the Veteran sought treatment in service or thereafter for bilateral hearing loss. The opinion also noted that Veteran’s first complaint of symptoms occurred 41 years after separation and he was unable to specify the onset of his condition. Thus, his hearing loss was deemed more likely related to age. Pursuant to an April 2015 Board remand decision, the Veteran was afforded a subsequent examination. In an addendum opinion, dated August 2015, the examiner again, opined that it was less likely as not that the Veteran’s bilateral hearing loss was caused by or otherwise related to active service. In reaching the stated conclusion, the examiner noted that a review of the Veteran’s service treatment records did not reveal standard used to evaluate his hearing in service. However, recent guidance suggests that where a calibration standard is not specified, audiologists should assume use of the ASA-standard prior to 1969, and the ISO standard, thereafter. Using ISO standard, negative thresholds are not common, and often when negative numbers are documented (as was the case at both pre-induction and induction), it is safe to assume that ASA standard was used. Upon conversion of the Veteran’s in-service audiograms, no significant change in hearing was noted between enlistment and separation. Further, at separation, the Veteran’s hearing thresholds were within the normal range; no threshold above 10dBHL. Thus, the examiner concluded that it is unlikely that the Veteran’s hearing loss was related to service, to include consideration of the remoteness of the Veteran’s complaint from service. The Board notes that in Hensley v. Brown, 5 Vet. App. 155, 159 (1993) the Court held that VA may not use audiometric tests from a claimant’s separation examination as a per se legal bar as to proof of service connection. Audiometric testing measures threshold hearing levels (in decibels (dB) over a range of frequencies (in Hertz (Hz)); the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss. In Hensley, in-service audiometric testing yielded elevated thresholds at some frequencies and the Court found that even if audiometric testing at service separation did not meet the requirements of 38 C.F.R. § 3.385 (establishing hearing loss by VA standards) the service connection claim could not be denied solely on that basis. Rather, where evidence of current hearing loss (by VA standards) is present, a determination must be made as to whether shifts in auditory thresholds during service represented the onset of any current hearing loss (even if first diagnosed a number of years after service). CURRENT MEDICAL DIAGNOSES & TREATMENT 110-11 (Stephen A. Schroeder et al. eds., 1988).” Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Although a comparison of audiogram evaluations at enlistment and separation reveals a change threshold levels, the evaluations remained within normal limits. Accordingly, any shift in threshold levels could not be attributed to current hearing loss. In making all determinations, the Board acknowledges its obligation to fully consider all medical evidence and lay assertions of record. When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here, the Veteran has asserted entitlement to service connection for bilateral hearing loss as due to acoustic trauma from mortar fire in service. However, the evidence of record does not reveal complaints of ongoing symptoms or any evidence of continuity of symptomology. While the Veteran is competent to report on observable symptoms, lay persons are not competent to consider complex medical questions to include assessments of the nature and etiology of current symptoms or render a complex medical opinion or diagnosis in the absence of proof of relevant training and expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377. Although the Board is sympathetic to the Veteran’s belief that his bilateral hearing loss was caused by exposure to acoustic trauma during active service, the medical evidence does not support his assertion. Further, even if the Board were to concede that the Veteran’s service as a mortar squadron leader was consistent with hazardous noise exposure, the record does not reveal a nexus between the Veteran’s current hearing loss and his active service, to include noise-exposure therein. Further, there is no competent medical evidence showing that the Veteran’s current symptoms of bilateral hearing loss head an onset in service or were otherwise related to service. The Board notes the Veteran’s complaints of earaches and receipt of related treatment in service. However, the evidence of record does not reveal a basis upon which a causal connection could be reasonably drawn between earaches in service and bilateral hearing loss over four decades after separation. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The claims of entitlement to service connection for bilateral hearing loss and tinnitus must be denied. Double Click Here to Sign M. Donohue Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Whitaker, Associate Counsel