Citation Nr: 1648541	
Decision Date: 12/30/16    Archive Date: 01/06/17

DOCKET NO.  10-29 105	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Baker, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1968 to November 1970.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA).  

In October 2013, the Board found that a new VA medical opinion was required to address the potential nexus between the Veteran's current bilateral hearing loss disability and his service.  The Board therefore remanded the claim for additional development.  The matter has returned to the Board for appellate consideration.

In July 2012, the Veteran testified before a Veterans Law Judge who is no longer employed by the Board.  A transcript of that hearing is of record.  In August 2016 the Board informed the Veteran that the Veterans Law Judge who conducted the hearing is no longer employed by the Board, that he is entitled to another Board hearing with a different Veterans Law Judge, and that if he did not respond within 30 days of the date of the letter, the Board would assume that he did not want another hearing and would proceed with adjudicating his appeal.  The Veteran responded in September 2016, indicating that he did not wish to appear for another Board hearing, and that he desired for the Board to consider his case based on the evidence of record.  Therefore, the Board will proceed with appellate consideration.  

Following issuance of the November 2013 supplemental statement of the case, additional evidence, to include treatment records from the Tennessee Valley Healthcare System from October 2015, was associated with the record.  In an October 2016 statement, the Veteran's representative waived initial consideration of the evidence by the Agency of Original Jurisdiction (AOJ).  Accordingly, the Board may proceed with appellate consideration and accepts the additional evidence for inclusion in the record on appeal.  See 38 C.F.R. § 20.1304(c) (2015).



FINDING OF FACT

The most probative evidence of record does not show that it is at least as likely as not that bilateral hearing loss was chronically manifested during active service or continuously since service, or manifested to a compensable degree within one year of separation from active service, or otherwise etiologically related to active service.


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss are not met.  38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2015).  


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duty to Notify and Assist

Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, and 3.326(a) (2015); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

VA letters issued in June 2009 and September 2009 satisfy the duty to notify provisions.  The letters notified the Veteran of the evidence necessary to substantiate his service connection claim for bilateral hearing loss. 

The duty to assist the Veteran has also been satisfied in this case.  The service treatment records and VA treatment records have been associated with the record.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Veteran was provided a VA audiological examination for bilateral hearing loss in November 2011 and a supplemental medical opinion was issued in November 2013.  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The November 2011 VA examiner reviewed the record, considered the Veteran's reported symptomatology, and conducted detailed medical testing.  In addition, the examiner who provided the November 2013 VA addendum opinion reviewed the record, including the November 2011 VA examination report, and addressed the likely etiology of the Veteran's claimed bilateral hearing loss disability, providing supporting explanation and rationale for all conclusions reached.  The examination and addendum opinion, in the aggregate, were thorough and reflect consideration of all relevant evidence and testing.  Therefore, the Board finds the examination and opinion to be adequate.  

There is no indication in the record that any additional evidence, relevant to the claim adjudicated in this decision, is available and not part of the record.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

Compliance with Board Remand

As noted in the Introduction, the Board remanded this case in October 2013.  The October 2013 Board remand directed the AOJ to obtain a supplemental medical opinion regarding whether it is at least as likely as not that the Veteran's bilateral hearing loss is related to his exposure to noise trauma in service, specifically addressing the Veteran's description of noise exposure contained in the July 2012 hearing transcript and the Veteran's statements regarding the onset of symptomatology, then readjudicate the claim and issue a supplemental statement of the case, if warranted.  Pursuant to the October 2013 Board remand, the AOJ obtained a supplemental medical opinion in November 2013 that considered the Veteran's descriptions of noise exposure and statements as to the onset of symptomatology and then readjudicated the claim and issued a supplemental statement of the case.  Accordingly, the Board finds that VA at least substantially complied with the October 2013 Board remand.  See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  

Other Due Process Considerations

As noted in the Introduction, the Veteran was afforded a hearing before a Veterans Law Judge (VLJ) in July 2012.  At the hearing, the VLJ asked the Veteran specific questions concerning the symptoms of and treatment for his bilateral hearing loss.  In addition, the VLJ solicited information as to the existence of any outstanding evidence.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010).  Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016).

Legal Criteria

Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110 (West 2014); 38 C.F.R. § 3.303 (2015).  To establish service connection for a disability, the Veteran must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167(Fed. Cir. 2004).  Service connection may be established for a disability shown after service when all of the evidence, including that pertinent to service, shows that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Service connection for certain diseases, including organic diseases of the nervous system such as hearing loss, may also be established on a presumptive basis by showing that the disease manifested to a compensable degree within one year from the date of separation from service.  38 C.F.R. §§ 3.307(a)(3), 3.309(a).  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for hearing loss.  38 C.F.R. § 3.303(b). 

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, or 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 C.F.R. § 3.385.  The absence of in-service evidence of a hearing loss disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes).  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

Analysis

The Veteran contends that he has bilateral hearing loss directly related to in-service noise exposure and an ear infection.  See, e.g. July 2012 Hearing Transcript.  

The medical evidence shows that the Veteran has a current bilateral hearing loss disability in accordance with 38 C.F.R. § 3.385.  See, e.g., November 2011 VA examination report. 

The Board finds that the Veteran had an in-service injury, consisting of an ear infection and acoustic trauma from noise exposure.  The Veteran reports that he was exposed to noise from laundry machines, shooting rifles at the range, truck engines, and a mine on a training course.  See July 2012 Hearing Transcript.  The Veteran further contends that his hearing was damaged from an ear infection in basic training.  The Veteran thinks that he probably first noticed hearing loss in the 1970s, later clarified to the late 1970s or early 1980s, but did not do anything about it.  Id.  The Veteran is considered competent to attest to his exposure to noise during active service as he has personal knowledge of the circumstances surrounding his service.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  The Board finds him credible in this regard, as his DD Form 214 indicates that his military occupational speciality was a Laundry and Bath Specialist, he completed Basic Combat Training, and a lay witness statement received in September 2016 attests to the Veteran's duties driving trucks and noise exposure while stationed in Germany.  After resolving any doubt in the Veteran's favor, his statements regarding noise exposure are largely consistent with the places, types, and circumstances of his service.  See 38 U.S.C.A. § 1154(a).  The Veteran is also credible to report an in-service ear infection.  The Veteran contends that he suffered from an ear infection while in basic training.  The Veteran's service treatment records are absent any complaint for ear infection.  However, the mere absence of contemporaneous evidence is not sufficient to determine that the Veteran's lay statement's concerning the onset of his symptoms lack credibility.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).  In this regard, it is also significant to note that the Veteran is competent to report observance of diminished hearing in service.  Therefore, after resolving any doubt in the Veteran's favor, the Board finds the Veteran credible in his assertions of in-service noise exposure, an in-service ear infection, and diminished hearing in service.  

However, the Veteran is not considered competent to diagnose hearing loss disability for VA purposes in service or at any other time, to include to a compensable degree within one year after service, or to medically attribute his current hearing loss to any particular cause, such as an ear infection or in-service acoustic trauma, because such are complex medical issues requiring medical training and knowledge the Veteran has not been shown to possess.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan, at 1336-37.  Therefore, his statements are not probative as in this regard.  Accordingly, to determine whether the Veteran's current hearing loss is related to his active service, the Board turns to the competent medical evidence of record.  In this case, the competent medical evidence of record as to the possible etiological relationship between the current hearing loss disability and the in-service injuries consists of the November 2011 VA examination and opinion and the supplemental November 2013 VA opinion. 

The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches.  Further, the credibility and weight to be attached to these opinions are within the province of the adjudicator.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  

The Board affords great probative weight to the November 2011 examiner's opinion in its finding that it is less likely than not that the Veteran's hearing loss was the result of his military duty or a condition sustained during military service insofar as that examiner's opinion applies to bilateral hearing loss potentially caused by an in-service ear infection.  The Board affords no probative weight to the November 2011 VA examiner's opinion insofar as it encompasses hearing loss related to in-service acoustic trauma from noise exposure.  The November 2011 VA examiner reviewed the record, interviewed the Veteran, and personally examined the Veteran.  The examiner acknowledged the Veteran's December 1968 intake and August 1970 separation audiological examinations showing hearing within normal limits and showing no significant threshold shifts during service.  The examiner considered the Veteran's contention that his onset of hearing loss was due to an ear infection in 1969, and the Veteran's medical history being significant for chronic ear infections and tube placement.  Upon audiological testing, the examiner found current conductive hearing loss in the right ear and mixed hearing loss in the left ear.  The examiner also noted the Veteran's positive military history for noise exposure.  The Veteran reported difficulty with conversation, often requiring repetition of words.  The examiner opined that it is less likely than not that the Veteran's hearing loss was the result of military duty or a condition sustained during his military service.  The examiner's rationale is  based on normal intake and separation audiological exams.  The examiner's rationale is adequate as it applies to an in-service ear infection because it relies on the examiner's demonstrated medical knowledge and skill in analyzing the data.  Id.  However, the examiner's rationale regarding acoustic trauma due to in-service noise exposure is not adequate, as it does not consider the possibility of delayed onset.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Therefore, the Board affords the November 2011 VA opinion great probative weight with regard to the Veteran's current bilateral hearing loss and its relation to an in-service ear infection.  However, the Board affords the November 2011 VA opinion no probative weight with regard to the relation of the Veteran's current bilateral hearing loss to acoustic trauma from in-service noise exposure.

The Board assigns great probative weight to the November 2013 VA opinion in its finding that it is less likely than not that the Veteran's current bilateral hearing loss is attributable to in-service noise exposure.  The November 2013 VA examiner reviewed the record, including the November 2011 examiner's report, as well as the Veteran's normal intake and separation audiological examinations.  Upon review of the Veteran's December 1968 intake examination and August 1970 separation examination, the examiner notes normal hearing on both exams and "no significant threshold shifts," except for a mild 30 dB loss at 6000 Hz on the December 1968 examination.  The examiner reviewed the Veteran's contentions contained in his 2012 hearing testimony concerning the onset of the Veteran's hearing loss, which the Veteran describes as first noticed in the "late  1970's or early 1980's", and its attribution to driving trucks in Germany.  The examiner opined that the "Veteran's current hearing loss is less likely than not caused by or a result of military noise exposure."  The examiner further opined that research indicates that "there is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure...[however] based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur."  The Board finds the examiner's opinion to have great probative weight as the examiner considered the Veteran's reported history, including his account of in-service noise exposure, considered the possibility of delayed onset hearing loss, noted and cited to evidence reviewed, and provided reasoning for her conclusion, which was not based solely on evidence of a normal audiogram at separation.  Id.  

The Board has also considered whether service connection for hearing loss is warranted on a presumptive basis under the provisions of 38 C.F.R. §§ 3.303(b), 3.307(a)(3), and 3.309(a).  There is no record of any complaints of hearing loss to medical providers for many years after service.  Accordingly, there is no indication in the record that the Veteran's bilateral hearing loss disability manifested to a compensable degree within one year from the date of separation from service, and service connection on a presumptive basis is not warranted.  38 C.F.R. §§ 3.307(a)(3), 3.309(a).  Further, the Veteran has not argued, and the record does not show, that he has experienced bilateral hearing loss continuously since active service.  Rather, the Veteran has specifically contended that his current bilateral hearing loss is the result of in-service noise exposure, and that it became worse over time, and that he was treated in 2004.  See VA Form 21-4138, Statement in Support of Claim, received in December 2005.  To the extent that the Veteran's claim itself constitutes an argument that bilateral hearing loss has been present continuously since active service, the Veteran is competent to report in-service noise exposure, his current symptoms, and the history of those symptoms.  However, the Board does not find that the Veteran is credible as to his report of continuity of bilateral hearing loss since service.  As summarized above, the objective medical evidence of record does not show bilateral hearing loss during active service.  The record also shows that the Veteran's earliest complaints of hearing loss were in 2004, over 30 years after his separation from service.  Thus, continuity of symptomatology is not shown to establish chronicity under 38 C.F.R. § 3.303(b).

In summary, the record does not support a finding that the Veteran's current hearing loss disability is etiologically related to the Veteran's in-service noise exposure or an ear infection.  The evidence of record does not include service treatment records showing in-service hearing loss or an ear infection, and there is no record of hearing loss treatment until many years after service.  The most probative evidence of record does not show that it is at least as likely as not that bilateral hearing loss was chronically manifested during active service or continuously since service, or manifested to a compensable degree within one year of separation from active service, or otherwise etiologically related to active service.  After considering all the evidence under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to service connection for bilateral hearing loss because the probative evidence of record is against a finding that there is a nexus between the current bilateral hearing loss disability and active service.  As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt provision is not for application, and the claim must be denied.  See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).


ORDER

Entitlement to service connection for bilateral hearing loss is denied.




____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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