Citation Nr: 21065898
Decision Date: 10/27/21	Archive Date: 10/27/21

DOCKET NO. 18-54 397
DATE: October 27, 2021

ISSUE

Entitlement to service connection for a bilateral hearing loss disability.

ORDER

Entitlement to service connection for a bilateral hearing loss disability is denied.

FINDINGS OF FACT

The Veteran's bilateral ear hearing loss disability is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of the Veteran's discharge from service.

CONCLUSION OF LAW

A bilateral ear hearing loss disability was not incurred in or aggravated by service and may not be presumed to have been so incurred or aggravated. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty in the Navy from March 1967 to December 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal.

By way of background, the Veteran's claim for entitlement to service connection for a bilateral hearing loss disability was denied in November 2017. The Veteran filed a timely Notice of Disagreement (NOD) in July 2018, and he was issued a statement of the case (SOC) in September 2018. The Veteran filed a VA Form 9 in November 2018 through his Representative. In that VA Form 9, the Veteran's Representative requested that the Form 9 still be accepted, despite the VA Form 9 not being submitted within 60 days of the SOC, as the Veteran was on vacation and "did not receive the letter until his return." The RO accepted the Veteran's untimely VA Form 9 and certified the Veteran's claim to the Board in December 2018.

Despite the delayed submission of the VA Form 9, the Board takes jurisdiction of the claim for entitlement to service connection for a bilateral hearing loss disability.  Percy v. Shinseki, 23 Vet. App. 37, 41 (2009)

As an aside, the Board notes that in November 2018 the Veteran submitted a claim for entitlement to service connection for bilateral tinnitus. The Veteran's claim was denied in a rating decision from February 2019. Neither the Veteran nor his Representative have submitted a timely NOD for that claim, and as such, entitlement to service connection for bilateral tinnitus is not before the Board at this time.

In the Veteran's VA Form 9, the Veteran requested a hearing before a Veterans Law Judge. The Veteran was scheduled for a Board hearing in June 2020, which he did not attend. The Veteran was again notified in April 2021 that he had been rescheduled for a virtual hearing in July 2021. The Veteran also did not attend that hearing, and neither the Veteran nor his Representative have submitted good cause for not attending the hearing, nor have they requested an additional hearing. Thus, the Board considers the request for a Board hearing to be withdrawn. See 38 C.F.R. § 20.702 (if the appellant fails to appear for a hearing without good cause, the case will be processed as though the request for the hearing had been withdrawn).

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).

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board).

The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

Entitlement to service connection for a bilateral hearing loss disability.

The Veteran is claiming that his bilateral hearing loss is related to his active-duty service.

To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § § 3.303(a)

In the case of any Veteran who served for ninety (90) days or more during a period of war - a chronic disease becoming manifest to a degree of ten (10) percent of more within one (1) year from the date of separation from such service shall be considered to have been incurred in or aggravated by such service, notwithstanding there is no record evidence of such disease during the period of service. 38 U.S.C. § 1112 (a)(1). The term chronic disease includes organic diseases of the nervous system, such as sensorineural hearing loss. 38 U.S.C. § 1101 (3); see also 38 C.F.R. § 3.309 (a).

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

In deciding the Veteran's claim, 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

To begin, the Veteran has a current diagnosis of bilateral hearing loss. The Veteran's claims file includes VA examinations from October 2017 and December 2018 which both confirm a current diagnosis of bilateral sensorineural hearing loss. As such, the Veteran has met the first criteria for entitlement to service connection. 38 C.F.R. § § 3.303(a).

Turning to the second criteria, the Veteran's original claim for entitlement to service connection indicates that he believes his hearing loss is "due to noise." In the Veteran's NOD from July 2018, he clarified that he was "assigned many duties which were out of my rating," many of which were performed "without hearing protection." The Veteran indicated that he worked "in the engine room, cleaning and maintenance," and that his placement on different assignments exposed him to significant noise.

The Board notes that the Veteran's military personnel records do not indicate that he served in maintenance or engine rooms, and instead his DD-214 lists his military occupational specialty (MOS) as a cook/chef. Having said that, the Veteran did note that these were temporary reassignments, and that often he had to engage in general maintenance and cleaning. Furthermore, the Veteran is competent to report that which he experienced during his service, which arguably includes the assignment to various tasks in areas associated with significant noise exposure over the course of his seven years of active duty. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Thus, affording the Veteran the benefit of the doubt, he was exposed to hazardous noise during his active-duty service, and he has met the second criteria for entitlement to service connection. 38 C.F.R. § § 3.303(a).

Moving to the final criteria, there must be a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303(a).

As noted above, the Veteran was given a VA examination in October 2017. The Veteran was seen in person, and his claims file was reviewed. During clinical testing, the VA audiologist confirmed the Veteran's diagnosis of bilateral sensorineural hearing loss. The examiner then opined that the Veteran's bilateral sensorineural hearing loss is less likely than not due to his active-duty service. The examiner provided a detailed rationale, noting that the Veteran's entrance and exit examinations were negative for any indications of hearing loss. They noted that the Veteran's "MOS had low probability of noise exposure," and that therefore it was less likely than not that his hearing loss was due to the claimed acoustic trauma.

The Veteran's claims file also contains a VA audiological examination from December 2018. Again, the Veteran was seen in person and his claims file was reviewed. The audiologist again confirmed the Veteran's diagnosis of bilateral sensorineural hearing loss. They then opined that the Veteran's hearing loss was less likely than not due to his active-duty service. The following rationale was provided:

While the Veteran reports some noise exposure in the performance of ancillary duties such as painting and laundry, his primary MOS of cook was not rated as having a high probability of hazardous noise exposure. The only frequency-specific audiological information in the [claims file] dating from the Veteran's time in service is on the 12/6/1972 re-enlistment exam; results were well within normal limits ... The next audiogram in the [claims file] was 10/10/2017 hearing loss and tinnitus disability benefits questionnaire (DBQ) performed over 40 years after separation. Results showed a mostly mild hearing loss in both ears at that time. However, on current testing the Veteran displayed a moderate-to-moderately severe sensorineural hearing loss bilaterally. Such a rapid hearing decline suggests a more recent origin for the Veteran's hearing loss. Therefore, it is less likely than not that the Veteran's current hearing loss is the result of military noise exposure.

As such, a negative etiological opinion was provided by both VA audiologists.

There is no evidence that the VA examiners were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran's disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

The Board additionally notes that the Veteran's claims file contains no further audiological examinations, VA or otherwise.

In consideration of the above, the Board finds that the Veteran's bilateral hearing loss disability is not shown to be causally or etiologically related to any disease, injury, or incident in service. The Veteran has a current diagnosis, and after giving the Veteran the benefit of the doubt, the Board has conceded the Veteran's claimed in-service noise exposure. Having said that, the Veteran's claims file contains two VA examinations, both of which provide negative etiological findings. The first VA examination from October 2017 noted the Veteran's normal hearing levels on entrance and separation, before acknowledging that the Veteran's MOS of cook/chef had a low likelihood of noise exposure. While that rationale was somewhat brief, the conclusion was reinforced by the report from the December 2018 VA audiologist. That examiner acknowledged the Veteran's lay statements and reports of "ancillary duties such as painting and laundry," but still opined it was less likely than not that the Veteran's current diagnosis was due to his active-duty service. They also noted the time gap between his separation from service and his initial diagnosis of bilateral hearing loss. Importantly, the passage of many years between discharge and medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxon v. Grober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The examiner also provided their report based on the Veteran's specific audiological findings, which noted a rapid hearing decline. The audiologist found that this therefore suggested "a more recent origin for the Veteran's hearing loss." The Board has attributed significant probative weight to each of these VA examinations, and there are no further examinations, private or otherwise, within the Veteran's claims file.

The Board also notes that there is no medical evidence showing that the Veteran was diagnosed with bilateral sensorineural hearing loss until many years after his separation from service and outside of the applicable presumptive period. These findings have also been confirmed by the December 2018 VA examiner. 38 U.S.C. § 1101 (3); see also 38 C.F.R. § 3.309 (a).

As a result, the Board finds that the Veteran's diagnosis of bilateral sensorineural hearing loss is not due to his active-duty service, nor did it manifest within one year of the Veteran's discharge from service. Therefore, he has not met the final criteria for entitlement to service connection. 38 C.F.R. § § 3.303(a), 3.309 (a).

Thus, entitlement to service connection for bilateral hearing loss disability is not warranted. In reaching this conclusion, the Board finds that the preponderance of the evidence is against the claim. As such, the benefit of the doubt rule is not for application, and the claim must be denied.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

 

 

Michael A. Pappas

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G. Mulrain, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.