Citation Nr: 1736603	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  15-34 164	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to service connection for right ear hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Elliot Harris, Associate Counsel







INTRODUCTION

The Veteran had a period of active duty from September 1980 to September 1983. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2013 rating decision of the Phoenix, Arizona, Regional Office (RO) of the Department of Veterans Affairs (VA). 

On February 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.  At the time, the Board remanded his claim of service connection for right ear hearing loss.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016); 38 U.S.C.S. § 7107(a)(2) (Lexis 2017).


FINDING OF FACT

The Veteran's right ear hearing loss is not shown to be related to active duty service and a sensorineural hearing loss was not demonstrated within one year following separation from active duty. 


CONCLUSION OF LAW

The criteria for establishing entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C.A. §§ 101, 1131,1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3,307, 3.309, 3.385 (2016).






REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify and Assist

VA has a duty to provide notice of the information and evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

A December 2013 and January 2014 VA letters satisfied the duty to notify provisions. 

VA also has a duty to provide assistance to substantiate a claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(c).

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).

The Veteran's service treatment and service personal records have been obtained and the Veteran has received treatment at VA health care facilities.  The Veteran did directly submit releases for VA to obtain any private treatment records.  The Veteran's service treatment records and service personal records are of record. 

The Veteran was afforded a VA medical examination connected with the claim most recently in March 2017 which includes an opinion as to the etiology of any current right ear hearing loss and its relationship to his period of service.  

As noted above, the Board remanded this matter in February 2017.  Specifically, the Board directed that a new VA examination and supplemental statement of the case (SSOC) be prepared and sent to the Veteran.  A review of the Veteran's claims file shows that he was provided an updated SSOC in April 2017.  As the requested development has been completed, all remand requirements have been met, and the case may move forward without prejudice to the Veteran.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

II. Service Connection for Hearing Loss

Legal Criteria

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.A. § 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)).

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, 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 (2016).

The Veteran's essential contention here is that he currently suffers from hearing loss related to his period of active duty.  The Board acknowledges that the Veteran was exposed to noise exposure during his period of active duty.  The Board also acknowledges that the Veteran has received VA treatment for his hearing loss and currently uses hearing aids.  The Board also recognizes that the Veteran was granted service connection for tinnitus, due in part to his in service noise exposure.  Finally the board concedes that the Veteran in a March 2017 VA examination was found to have right ear hearing loss. He has therefore met the disability requirement for the claim.  The dispositive issue is thus whether the Veteran's right ear hearing loss is related to military service.

Review of the Veteran's STR's shows audiometric readings for the right ear within normal limits throughout service, as noted upon entry in July 1980, in January 1981, in December 1982, in April 1983, and upon separation in July 1983.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1983) (holding that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss).

On the authorized audiological evaluation in July 1980, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
0
0
0

On the authorized audiological evaluation in January 1981, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
0
0
0

On the authorized audiological evaluation in December 1982, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
0
0
0


On the authorized audiological evaluation in April 1983, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
5
25
5


On the authorized audiological evaluation in July 1983, for separation from the military the Veteran's pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
10
5
0
0

At the most recent VA examination on March 2017, pure tone thresholds in decibels were recorded as follows:

*


HERTZ



500
1000
2000
3000
4000
RIGHT
60
65
50
70
65

During the Veteran's February 2017 videoconference hearing, his representative directed the Board to a November 1982 STR.  According to the report, a grenade simulator exploded in close proximity to the Veteran's head and he complained of ringing and bleeding from his ears.  The Veteran's representative stated that the upward shift in audiometric readings from the January 1981 to December 1982 were attributable to this explosion.  In review of his STR for the incident, the record does demonstrate ringing in his ears "especially the right ear", however; there is no mention of any right ear hearing loss due to the grenade explosion, only slight burns, and face lacerations.  No evidence of residual hearing loss from the explosion was present in the Veteran's subsequent audiological testing post the grenade explosion as can be seen above.

The VA examiner's diagnosis concluded that the Veteran has mixed hearing loss of the right ear because the pure tone thresholds for the right ear are 40 hertz or higher. Although the Veteran did have an auditory threshold of 40 decibels or greater, nonetheless the examiner opined that given there was no significant shift in hearing levels greater than normal measurement variability during military service and no record of complaint or treatment of claimed condition in STR, it is less likely than not that the hearing loss is related to military noise exposure. 

The last report of the STR mentioning any medical issues regarding the right ear was in December 1982 regarding a outer ear rash along the right ear lobe which was treated with an anti-bacteria cream.  Nothing in the medical records indicates a nexus between the outer ear rash and the Veterans current loss of hearing. 

A review of the Veteran's STR's by the VA examiner revealed no evidence of inservice hearing loss present.  The examiner found the current right ear hearing loss was not consistent with what is normally seen from acoustic trauma given that there is a conductive/mixed component.  Therefore the opinion of the examiner is that the Veteran's current complaint of right ear hearing loss is not related to his military service.

Based on the above, the Board finds that a preponderance of the evidence is against the claim.  The VA examination opinions were provided by VA audiologist and are supported by a reasoned opinion that is consistent with the evidence of the record, the Board affords them significant probative value.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).

The VA obtained adequate opinions specifically addressing whether the Veteran's right ear hearing loss was directly related to service.  The VA examiner thoroughly reviewed the claims file prior to rendering the opinion and therefore considered all pertinent evidence to include the Veteran's contentions.  Finally, to the extent the Veteran may argue that the examiner improperly relied on a lack of corroborating evidence in that the Veteran reported other medical conditions during service but not right ear hearing loss, while Buchanan v. Nicholson, 451 F.3d 1331, 1337  (Fed. Cir. 2006) holds that "the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence," that holding applies to the Board but does not apply to the medical examiner. Nothing in the law prevents a medical examiner from basing their opinion on the facts they deem relevant to that opinion. Id.  Moreover, in this case, the examiner appears to have considered this to be an ancillary factor; his principal conclusion is that right ear hearing loss is unrelated to the Veteran's service.  As noted, significant hearing loss was not indicated in the STR's.

The July 2017 Appellant's Post-Remand Brief submitted by the Veteran's representative introduces additional evidence under an alternative theory regarding the Veteran's hearing loss diagnosis labeled Hidden Hearing Loss (HHL) in which understanding speech is challenging in listening environments. 

The Veteran's representative asserts that HHL manifest itself where the Veteran is shown to have difficulty hearing, but has been able to achieve normal or near normal hearing under traditional VA hearing examinations.  The Veteran's representative advances the theory that the Veteran's hearing loss is exposed in challenging listening environments.  The Board does acknowledge the Veteran's contention, but the current disability element is not in question here, rather the nexus element for the disability service connection has not been met by the Veteran.  

To the extent that the Veteran had offered his opinion that his right ear hearing loss is related to service, the Board finds that the medical opinions are more probative.  They considered all the evidence of record, provided a thorough rationale for their conclusions, and added the weight of medical knowledge which adds too their probative value.

In sum, the most probative evidence of record shows that the Veteran's right ear hearing loss did not manifest during service or for many years thereafter.  38 C.F.R. § 3.309 (a) (2016); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (Fed Cir. 2006).. The Board also observes that there is no evidence to show that right ear hearing loss existed or were "noted" in service.

The Board recognizes that, "While a lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a Veteran's lay evidence, the lack of such records, does not, in itself, render lay evidence not credible."  Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006).  Thus, the provisions of 38 C.F.R. § 3.303 (b) (2016) pertaining to chronicity or continuity of symptomatology are not for application.

The only medical opinions of record are unfavorable to the Veteran's claims and provided thorough and persuasive rationales, the preponderance of the most probative evidence weighs against the claims.  In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).


ORDER

Service connection for right ear hearing loss is denied. 


____________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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