Citation Nr: 1815256	
Decision Date: 03/13/18    Archive Date: 03/19/18

DOCKET NO.  07-33 447	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

N. Rippel, Counsel


INTRODUCTION

The Veteran served on active duty from October 1960 to November 1980.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

In July 2015, a videoconference hearing was held before the undersigned Veterans Law Judge (VLJ). 

The Veteran originally submitted a claim for a bilateral inner ear disorder.  The VLJ clarified the issues on appeal were in fact service connection for tinnitus and bilateral hearing loss disability.  

In an October 2015 decision, the Board granted service connection for tinnitus and remanded the issue of service connection for bilateral hearing loss disability in order to afford the Veteran an audiological examination.  The claim was remanded again in July 2016 because the examination had not been accomplished.  As the requested medical examination was thereafter obtained, the Board finds the directives have been substantially complied with, and the matter again is before the Board.  Stegall v. West, 11 Vet. App. 268, 271 (1998).


FINDINGS OF FACT

1.  Right ear hearing loss disability was noted at entry.  

2.  Right ear hearing loss disability did not increase in severity during service.  

3.  Left ear hearing loss disability has not been shown to have had its onset in service or within one year of service, nor is such disability shown to have been caused or aggravated by disease or injury in active military service.


CONCLUSIONS OF LAW

1.  Preexisting right ear hearing loss disability was not aggravated by service.  38 U.S.C. §§ 1110, 1111, 1153 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306. 3.385 (2017).

2.  A left ear hearing loss disability was not incurred in or aggravated during service, and an organic disease of the nervous system, left ear sensorineural hearing loss, may not be presumed to have been incurred therein.  38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

      I.  Law

Veterans are entitled to compensation if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty."  38 U.S.C. § 1110 (wartime service), 1131 (peacetime service).

To establish entitlement to service-connected compensation benefits, 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."  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service.  38 C.F.R. § 3.303 (d).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

The Veteran has been diagnosed with a bilateral hearing loss disability.  Sensorineural hearing loss is considered an organic disease of the nervous system, which is identified as a "chronic disease" under 38 U.S.C. 1101 and 38 C.F.R. § 3.309 (a). 

"For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic."  When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity.  Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim."  38 C.F.R. § 3.303 (b).

With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected.  Id. at 159.

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, 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.

A Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted on the entrance examination report.  38 C.F.R. § 3.304 (b).  The presumption of soundness is rebutted where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto, and was not aggravated by such service.  Id.  Where a preservice disability undergoes an increase in severity during service, clear and unmistakable evidence is required to rebut the presumption of aggravation during service.  38 C.F.R. § 3.306.  VA has the burden of rebutting the presumption of aggravation.  Laposky v. Brown, 4 Vet. App. 331, 334 (1993).

      II.  Analysis

The Veteran was exposed to noise in service by virtue of his duties as an aircraft loadmaster technician during his 20 year career in the Air Force.  He also has current bilateral hearing loss disability for VA purposes.  The critical question, thus, is whether his current hearing loss disability is related to his in-service noise exposure.  For the following reasons, the Board finds that it is not, and service connection must be denied.  

Service treatment records reflect that the Veteran never complained of hearing loss.  Rather, they are replete with reference to his denial of hearing loss, to include at his enlistment, separation and multiple periodic examinations.  However, during his 1960 enlistment examination, audiogram results reflect puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
-5
-5
30
40
LEFT
0
0
0
0
0

While this audiogram shows that his right ear demonstrates hearing loss for VA purposes, none of the subsequent audiograms in the service treatment record reflect 

results that meet 38 C.F.R. § 3.385.  The audiogram at separation in 1980 revealed the following:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
5
5
LEFT
0
0
0
0
15

Following service, non-VA treatment records reflect that the Veteran denied decreased hearing in a September 1989 annual examination.  Bilateral sensorineural hearing loss (SNHL) was first documented in a July 2005 VA audiological consultation.  

At his July 2015 hearing before the undersigned, the Veteran testified that his hearing loss is due to his in-service exposure to rapid altitude drops and decompression in aircraft.  He experienced blood in his right ear after one drop, which is when his hearing problems started.  Transcript pp 4-7.  He reported he initially noticed problems hearing high frequency noise such as female voices.  

The Veteran was afforded a VA audiological examination in October 2017.  Based on examination and review of the record, the examiner found no permanent positive threshold shift occurred (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 Hz for either ear.  The examiner found that the Veteran's current bilateral SNHL was not at least as likely as not (50% probability or greater) related to service.  The following rationale was provided as to the right ear:

The Veteran reported that his bilateral hearing loss is related to in-service noise exposure to include noise exposure from his AFSC as loadmaster on C-130 and C-141 aircraft with minimal hearing protection. His AFSC and exposure to aircraft are consistent with a high probability of noise exposure. However, the fact that there was a moderate or high  probability of noise exposure does not mean that acoustic injury occurred. The audiograms serve as objective evidence to confirm or to rebut the existence of noise injury. The Veteran's 1960 enlistment audiogram documents hearing loss for VA purposes (including the ASA to ISO conversions) that improved to normal hearing sensitivity for VA purposes per 38 C.F.R. 3.385 on the 1980 separation audiogram as well as interim active duty audiograms dated 1965, 1966, 1967, 1968 1970, 1971, 1974, 1975, 1976, and 1978.

The Institute of Medicine (2006) report, Noise and Military Service: Implications for Hearing Loss and Tinnitus, stated there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The IOM concluded that based on current understanding of auditory physiology, it is "unlikely that such delayed effects occur". The audiograms serve as objective evidence to confirm or to rebut the existence of noise injury. Therefore, based on the objective evidence (audiograms) available, there is no evidence on which to conclude that the Veteran's current hearing loss was caused by or a result of his military service, including noise exposure.

Further, the examiner found that the pre-existing right ear hearing loss disability was not aggravated beyond normal progression in military service.  The examiner cited the Veteran's 1960 enlistment audiogram documenting hearing loss, improved to normal hearing sensitivity on the 1980 separation audiogram, as well as interim active duty audiograms dated 1965, 1966, 1967, 1968 1970, 1971, 1974, 1975, 1976, and 1978.

As to the left ear, the rationale was largely similar in that the same history was discussed and the IOM report was again cited for the same principles, but deviates in that the examiner finds that the left ear hearing loss did not pre-exist service.  In pertinent part, the examiner discussed the following:

Comparison of the Veteran's 1960 enlistment, interim, and 1980 separation audiograms (including the ASA to ISO conversions) shows puretone thresholds within normal limits for VA purposes per 38 C.F.R. 3.385 with no threshold shifts consistent with noise injury or acoustic trauma (i.e., no significant hearing threshold shift in service that resulted in damage to the auditory system.

      
Right ear

As to the right ear, the Board adopts the 2017 VA examiner's assessment that hearing loss for VA purposes pre-existed service.  The Board notes that a preexisting disorder need not be symptomatic at entry, only noted by the examiner.  See Verdon v. Brown, 8 Vet. App. 529, 534-535 (1996).  The presumption of soundness with regard to the right ear hearing loss does not apply.  See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b).  

The remaining question is whether the preexisting right ear hearing loss was aggravated during, or as a result of, service.

Aggravation is presumed under 38 U.S.C. § 1153 where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  However, 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 C.F.R. § 3.306 (b).

Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as opposed to the symptoms of that disability, has worsened.  Beverly v. Brown, 9 Vet. App. 402, 406 (1996).

The Board adopts the opinion of the 2017 examiner that there was no increase in disability during service for the right ear hearing loss, and it was not aggravated beyond normal progression in service.  The examiner clearly states that right ear hearing loss actually improved in service; thus clearly it did not undergo any worsening.  The opinion is well-supported, consistent with the record, contains citation to a medical journal and references the contrary theories set forth by the Veteran.  It is highly probative.  

While the Veteran is competent to assert his perceptions, his assertion are of minimal probative weight in determining whether this condition was actually aggravated in service in view of the examiner's well-supported opinion to the contrary.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the Board considers evidence to be more probative if it includes clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions).  Thus, the Board finds that the 2017 VA examiner's conclusions on this point are more probative than the Veteran's lay statements.  

In summary, the Board finds that the credible and probative evidence of record clearly and unmistakably shows that the Veteran's right ear hearing loss preexisted service, underwent no increase in disability in service and clearly and unmistakably was not aggravated therein.  For this reason, the Board finds that service connection for this disability is denied.

      Left ear

Left ear hearing loss disability initially manifested many years following service.  The Board emphasizes the at least 15 year gap between discharge from active duty service (1980) and evidence of disability in approximately 2005.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for disability can be considered as a factor in resolving claim).  Thus, hearing loss has not been shown to manifest during service or within one year after separation from service.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309.  The Board also notes that although sensorineural hearing loss is an enumerated chronic disease, it was not noted or diagnosed during service or within one year after separation.  As the evidence establishes that the Veteran did not have characteristic manifestations of the disease process during service or within one year after separation, service connection under 38 C.F.R. § 3.303 (b) is not applicable.  

Moreover, the medical opinion evidence preponderates against a relationship between the current left ear hearing loss and in-service noise exposure.  There are no competent, credible and positive nexus opinions of record.  Rather, the highly probative 2017 VA opinion is wholly against this claim.  

To the extent that the Veteran argues, generally, that hearing loss was present since an aircraft incident in service, his assertions are outweighed by the documented repeated denial of hearing loss in both the service treatment records and the post service record in 1989.  Furthermore, the Veteran's lay statements that current hearing loss is related to service are outweighed by the 2017 VA examiner's opinion that considered the Veteran's statements, clinical results, and accepted noise exposure consistent with the Veteran's assertions.  

Therefore, the benefit of the doubt rule is not for application because the evidence is not in relative equipoise.  The benefits sought on appeal are accordingly denied.  See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).

Finally, neither the Veteran (nor his representative) raised issues with respect to VA's duty to notify or assist or presented other procedural arguments that were not addressed above.  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 a duty to assist argument).  


ORDER

Service connection for bilateral hearing loss disability is denied.




____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs