Citation Nr: 1736681	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  08-39 600	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Michael J. Brown, Esq.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

N. Staskowski, Associate Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from July 1972 to December 1973.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Philadelphia, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO), which declined to reopen a claim of service connection for bilateral hearing loss.  In November 2010, a hearing was held before a Veterans Law Judge who has since retired; a transcript of the hearing is associated with the record.  A January 2011 Board decision reopened the claim and on de novo consideration remanded it for additional development.   In November 2014 this matter was again remanded for further development.  In October 2016, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the record. 


FINDING OF FACT

A hearing loss disability of either ear was not manifested in service, sensorineural hearing loss (SNHL) was not manifested within one year following the Veteran's separation from service; and the preponderance of the evidence is against a finding that his current bilateral hearing loss disability is related to his service.


CONCLUSION OF LAW

Service connection for bilateral hearing loss is not warranted.  38 U.S.C.A. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2016).







REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

VA's duty to notify was satisfied by two letters in June 2008.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the Veterans Law Judge conducting a hearing to fulfill two duties to comply with the regulation:  (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked and that might be potentially advantageous to the claimant's position.  At the October 2016 Travel Board hearing, the undersigned identified the issue and what was needed to substantiate the claim (identifying the deficiencies in the medical evidence that was in the record).  A deficiency in the conduct of the hearing has not been alleged.  The Board finds that there was compliance with 38 C.F.R. § 3.103(c)(2), in accordance with Bryant.  

The Veteran's service treatment records (STRs) are associated with his record, and VA has obtained all service, and postservice (private and VA) treatment records he identified.  He was afforded examinations in this matter in August 2009 and January 2012.  The examinations were by audiologists (competent to conduct them) who provided opinions that reflect familiarity with the record and include rationale that cites to supporting factual evidence.  The Board finds the examination reports adequate for rating purposes.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008).  VA's duty to assist is therefore met.  

Legal Criteria, Factual Background and Analysis

Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).  

Certain chronic diseases (to include SNHL as an organic disease of the nervous system) may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time following separation from service (one year for organic diseases of the nervous system).  38 U.S.C.A. § 1112 ; 38 C.F.R. §§ 3.307, 3.309.  For chronic diseases listed in 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity of symptomatology.  Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service.  38 C.F.R. § 3.303(d); See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  

For VA compensation purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 CFR § 3.385.

Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson.  38 C.F.R. § 3.159(a)(2).  Competent medical evidence is necessary where the determinative question requires medical knowledge.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. 
§ 5107(b); 38 C.F.R. § 3.102.  A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  

The Board notes that it has reviewed all of the evidence in the Veteran's record with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or does not show, with respect to the claim.

The Veteran's military occupational specialty (MOS) was indirect fire infantryman.  

On September 1971 pre enlistment examination, puretone thresholds were:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
5
N/A
5
LEFT
10
5
0
N/A
0

The Veteran's STRs show complaints of ear pain and ear injury, but not a diagnosis of hearing loss.  In September 1972 he was seen when part of an ear plug became lodged in his ear.  A February 1973 STR notes that he had complaints of an earache without fever.  A March 1973 treatment record indicates that the Veteran was seen for complaints of trouble hearing since a field maneuver.  An April 1973 STR notes that the Veteran complained of left ear pain for 9 months.  

A May 1973 STR notes that the Veteran had complaints of pain in the ears since entering service.  Audiometry testing revealed that puretone thresholds were:




HERTZ



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

The Veteran was determined to have hearing was within normal limits.

On December 1973 service separation examination audiometry, puretone thresholds were:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
0
5
5
LEFT
10
5
5
15
15

The ears were found to be normal on clinical evaluation at the time.

In a December 1973 report of medical history the Veteran indicated that he did not have a history of hearing loss.

In an April 1975 (two years after service) report of examination for loss of organic hearing acuity, puretone thresholds were:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5
N/A
10
LEFT
5
5
5
N/A
15

Speech audiometry revealed speech recognition ability of 96 percent in each ear.  The clinician conducting the examination concluded that hearing was within normal limits bilaterally.

On March 2009 private audiometry, puretone thresholds were:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
25
35
30
20
LEFT
15
25
35
35
30

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 88 percent in the left.  The audiometry was interpreted as showing a mild hearing deficit.

On August 2009 VA examination, puretone thresholds were:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
35
30
35
LEFT
15
20
30
40
40

Speech audiometry revealed speech recognition ability of 96 percent in each ear.  The examiner concluded that the Veteran had a mild bilateral high frequency hearing loss.  

On July 2010 private audiometry, puretone thresholds were:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
30
25
20
LEFT
10
20
25
35
30

Speech audiometry revealed speech recognition ability of 88 percent in each ear.  

On January 2012 VA examination, puretone thresholds were: 




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
40
30
35
LEFT
15
20
30
40
35

Speech discrimination results were determined by the examiner to be invalid for rating purposes due to unreliable results.  The examiner opined that hearing loss was not caused as a result of military noise exposure.  It was noted that the Veteran's hearing remained within normal limits in each ear upon discharge, and there were no puretone threshold shifts during service.  

On November 2016 private audiometry, puretone thresholds were:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
45
50
50
50
LEFT
35
40
50
55
55

Speech audiometry revealed speech recognition ability of 92 percent in each ear.  The provider opined that hearing loss was service related based on noise exposure during active duty military.

A June 2017 medical record notes that the Veteran indicated experiencing a decrease in hearing acuity following an explosion of a misfired mortar.

It is not in dispute that the Veteran has a bilateral hearing loss disability as defined in 38 C.F.R. § 3.385 (such was found on official audiometry).  It may also reasonably be conceded that by virtue of his military occupation in service the Veteran had some exposure to hazardous levels of noise in service.  Consequently, what remains necessary to substantiate his claim of service connection for bilateral hearing loss is competent evidence that his hearing loss is related to his service/noise trauma therein.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The Veteran's STRs do not show a hearing loss disability in service.  Although they note complaints of ear pain and perceived hearing loss, audiometry in service, including on separation examination found normal hearing.  Audiometry two years following service likewise found normal hearing.  As is noted above, the diagnosis of a hearing loss disability is established by specified audiometry, and such disability is not shown to have been manifested in service (and SNHL is not shown to have been manifested in the first postservice year).  Consequently, service connection for a hearing loss disability on the basis that such disability became manifest in service and has persisted since or on a presumptive basis (for SNHL as a chronic disease under 38 U.S.C.A. § 1112) is not warranted.  

SNHL is a chronic disease listed in 38 C.F.R. § 3.309(a)(as an organic disease of the nervous system), and the Veteran has attempted to support a continuity of symptomatology theory of entitlement (see 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013)).  However, the record simply does not support that there was continuity of hearing loss symptomatology (as hearing was normal on separation, and also two years later).

Service connection for a bilateral hearing loss disability may still be established by competent evidence that the Veteran's hearing loss, first documented many years after service is related to his service.  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  Whether or not a current hearing loss disability may, in the absence of evidence of onset in service or of continuity of symptomatology since, be related to service/exposure to noise trauma therein is a medical question.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

The Veteran is a layperson and does not profess to have any medical expertise.  He has provided a November 2016 private audiologist's opinion in support of his claim; however, the opinion is conclusory and does not include rationale for the conclusion reached.  Therefore, it lacks probative value. 
The only competent (medical) and adequate evidence in the record regarding a nexus between the Veteran's current hearing loss disability and his service is in the opinions of the August 2009 and January 2012 VA examiners who stated that it was less likely than not that the Veteran's hearing loss disability is related to his service/ and noise trauma therein.  The August 2009 examiner cited to the Veteran's post-service noise exposure (shipyard work for 20 years) as a more likely etiology for the hearing loss, and noted the normal audiometry at separation.  The January 2012 examiner added that during service the Veteran's sudiometry remained within normal limits and did not show puretone threshold shifts.  The examiners are medical professionals competent to offer the opinions; expressed familiarity with the Veteran's medical history; and the opinions are supported by adequate rationale that cites to supporting factual data.  The opinions are probative evidence in this matter, and in the absence of probative evidence to the contrary are persuasive.  The preponderance of the evidence is against this claim.  Accordingly, the appeal in this matter must be denied. 


ORDER

Service connection for bilateral hearing loss is denied.


____________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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