Citation Nr: 1820573	
Decision Date: 04/06/18    Archive Date: 04/16/18

DOCKET NO.  14-26 585	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for left ear hearing loss.


REPRESENTATION

Veteran represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

I. Umo, Associate Counsel


INTRODUCTION

The Veteran served active duty in the U.S. Army from March 1967 to March 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that, in pertinent part, denied service connection for bilateral hearing loss and tinnitus.

This case was previously before the Board in July 2016, where the issues of entitlement to service connection for right ear hearing loss and tinnitus were adjudicated, but the issue currently on appeal was remanded for further evidentiary development.


FINDING OF FACT

The Veteran's preexisting left ear hearing loss was not aggravated during active duty service.


CONCLUSION OF LAW

The criteria for service connection for left ear hearing loss have not been met.  38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

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 a duty to assist argument).
II.  Service Connection 

A. Governing Law

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. Shinseki, 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. 

For a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including sensorineural hearing loss, if the disability manifests 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).

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.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  

Importantly, when there is evidence that a disorder had its onset prior to service, questions relating to the presumption of soundness arise.  Every veteran is presumed to have been in sound condition when examined, accepted, and enrolled into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service.  38 U.S.C. §§ 1111.  The term "noted" refers to "[o]nly such conditions as are recorded in examination reports."  38 C.F.R. § 3.304(b).  When a condition is not noted on entry into service, the burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).

"In order to invoke the presumption of soundness, a claimant must show that he or she suffered from a disease or injury while in service."  Horn v. Shinseki, 25 Vet. App. 231, 236 (2012); see Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009) (explaining that the application of the presumption of sound condition does not "relieve the veteran of the burden of showing that the veteran suffered from a disease or injury while in service"); Dye v. Mansfield, 504 F.3d 1289, 1293 (Fed. Cir. 2007) ("The presumption of sound condition addresses the situation where a question arises whether a veteran's medical problems that arose during service existed before he joined the armed forces and, therefore, were not incurred in [the] line of duty.")  Thus, as the Court has previously explained, "before the presumption of soundness is for application, there must be evidence that a disease or injury that was not noted upon entry to service manifested or was incurred in service."  Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2012).

In making all determinations, the Board must fully consider the lay assertions of record.  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518 (1996).

B. Analysis

The Veteran contends he is entitled to service connection for left ear hearing loss due to noise exposure during active service.  See August 2013 NOD.  The record reflect that the Veteran served in the Army in the Republic of Vietnam as a movement specialist and supply clerk.  The Veteran reported that during this period of service, his office was on a base where there was an airfield and he heard constant noise from planes landing and taking off.  

At the outset, the Board notes that the Veteran's March 1967 entrance examination shows that he entered service with some degree of hearing impairment in his left ear.  His puretone thresholds were as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
0
-5
5
N/A
45
RIGHT
4
-5
-5
N/A
-10


Thus, the left ear hearing loss is considered to have been noted at entry into service and the Veteran is not presumed sound as to this disorder.  McKinney v. McDonald, 28 Vet. App. 15, 23 (2016) (holding that the Board may discern the significance of the contemporaneously recorded audiology test results and hearing loss constituting disability under 38 C.F.R. § 3.385 constitutes a defect under 38 U.S.C. § 1111).  

Therefore, as the presumption of aggravation potentially applies to the Veteran's left ear hearing loss, the issue before the Board is whether the preexisting left ear hearing loss was aggravated by service.  See Horn, 25 Vet. App. at 234 ("[t]here is a related but distinctly different statutory provision that pertains to cases in which a preexisting condition is noted on an entrance examination and the claimant contends that this condition was aggravated in service.  This provision is known as the 'presumption of aggravation'").  With regard to the presumption of aggravation, a preexisting injury or disease will be considered to have been aggravated by active duty service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.   38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a).

The evidence reflects that there was not an increase in severity of the left ear hearing loss.  Following the March 1967 induction examination, the STRs do not reflect worsening of the Veteran's left ear hearing loss, as there are no notations relating to complaints or treatment for left ear hearing loss.  The Board notes, however, that there is no separation audio examination to show an increase in hearing loss.  The Veteran's current hearing loss was first shown in a June 2014 audio examination.  The Veteran's puretone thresholds were as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
15
20
30
80
80
RIGHT
15
15
15
25
25

Additionally, the Veteran's Maryland CNC speech recognition score was 94 percent in the right ear and 90 percent in the left ear.  

Based on the Veteran's record and the examination, the examiner opined the Veteran's left ear hearing loss was not at least as likely as not caused by or a result of an event in military service.  The examiner reasoned that the Veteran entered service with pre-existing hearing loss in the left ear and that the Veteran was a supply clerk and clerk typist, which has a low probability of noise exposure.  She added that the Veteran worked in noisy jobs after the military and reported that hearing protection was available, but he chose not to wear it.  She explained that because the Veteran had little noise exposure in the military, but an extensive amount of unprotected, occupational noise exposure after service, it was her opinion that the pre-existing hearing loss in the left ear was aggravated by civilian noise exposure after service and less likely than not related to military noise exposure.  

Importantly, the Veteran reported that he worked at Chrysler in 1970 as a spot welder, and stated that it was a noisy job and the whole place was pretty noisy and he chose not to use hearing protection.  He added that he worked in every aspect of construction from 1971 to 1985, and after his release from incarceration, he worked as a laborer making pre-fabricated houses from 2007 to 2009.  Again, he chose not to wear hearing protection until his bosses spoke to him several times about the issue.  Likewise, recreationally, the Veteran used to go hunting and engaged in target shooting from the age of 16, and hearing protection was not worn.  Moreover, the Veteran reported bilateral hearing loss with an onset of twenty years ago.

In an October 2016 addendum opinion, the same VA examiner explained that she reviewed the entirety of the record before making her opinion.  She explained that the Veteran was clerk typist, which has a low probability of noise exposure.  Continuing she stated that although the separation audiogram in 1969 was not completed, the Veteran denied hearing loss or ENT issues on his exit physical questionnaire.  In 1980, he filed a C&P for a non-ear condition, but never filed a claim for hearing loss or tinnitus.  She explained that he worked in excessively noisy civilian jobs, and per his own admission, did not wear the hearing protection that was issued to him.  Further, she explained that given the evidence of record, she could not determine if the pre-existing hearing loss increased during service, but she provided that his MOS was inconsistent with noise exposure.  Moreover, the examiner noted that the Veteran's right ear was unaffected from 1967 to the 2014 audiogram beyond more than presbycusis.

The examiner opined that the Veteran's hearing did not deteriorate while in service.  It was not aggravated beyond its normal progression while in service, as his MOS was inconsistent with noise exposure (clerk typist).  She added that the Veteran's hearing loss in the left ear likely worsened as a result of not wearing hearing protection while working as a civilian.

The Board finds the examiner's opinion and addendum to be competent and highly probative.  Her opinions are supported by adequate rationale and take into account the Veteran's lay assertions and the other evidence of record.  No contrary medical opinion is of record.

Therefore, the Board finds that service connection for left ear hearing loss is not warranted.  The medical evidence does not show that the Veteran's left ear hearing loss was aggravated during service.  As such, the Board finds the preponderance of the evidence is against the claim and entitlement to service connection for left ear hearing loss is denied.  38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for left ear hearing loss is denied.




____________________________________________
Donnie R. Hachey
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs