Citation Nr: 18154166
Decision Date: 11/29/18 Archive Date: 11/29/18
DOCKET NO. 16-61 191
DATE: November 29, 2018
Entitlement to service connection for bilateral hearing loss is denied.
FINDING OF FACT
The evidence does not demonstrate that the Veteran’s bilateral hearing loss had its onset during active duty service, manifested within one year of separation from service, or was otherwise etiologically related to service.
CONCLUSION OF LAW
The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the United States Army from November 1972 to November 1974.
The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).
Duties to Notify and Assist
Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159.
The Veteran has not raised any issue with the duty to notify. 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 that the Veteran fails to raise before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).
As to VA’s duty to assist, the Veteran contends that VA failed to discharge its duty. See Veteran’s Form 9. However, the Board finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained and the Veteran has not referred to any additional, unobtained, relevant or available evidence. In May 2016, the Veteran was provided a VA examination regarding his claim for entitlement to service connection for bilateral hearing loss. The Board finds this examination to be adequate upon which to adjudicate the merits of this appeal, and thus concludes that VA has satisfied the duty to assist provisions of law. The findings from this examination are discussed in greater below.
Bilateral Hearing Loss
The Veteran contends that he developed bilateral hearing loss due to excessive noise exposure while serving in the military.
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Service connection may be presumed for certain chronic diseases, to include sensorineural hearing loss, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. 3.307, 3.309(a).
If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Continuity of symptomatology requires that the chronic disease have manifested in-service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id.
Pursuant to VA regulations, hearing loss is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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.
The Veteran’s military occupational specialty (MOS) was a military policeman. He alleges that while he was on active duty he would train with his assigned weapons, which included a M-16, shotgun, and .45 caliber pistol, monthly for qualification. The Veteran reports that while hearing protection was offered it was seldom used. See Veteran’s Form 9.
The Veteran’s service treatment records (STRs) do not contain complaints of or diagnosis of hearing loss.
The Veteran’s April 1999 private treatment records note that the Veteran had moderate notched sensorineural hearing loss in the high frequencies with excellent speech recognition abilities at comfortable presentation levels in quiet bilaterally. In November 2012, the Veteran was assessed with sensorineural hearing loss and tinnitus. The private provider recommended a hearing aid evaluation.
In May 2016, the Veteran underwent a VA audiological examination. The Veteran reported noise exposure during active service, which included shooting range practice and usage of hearing protection. The Veteran also reported that he worked in construction for many years after separation from the military and that he used hearing protection. Lastly, the Veteran stated that he noticed a decrease in his hearing approximately six years prior. The Veteran’s puretone thresholds, in decibels, were as follows:
500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz
RIGHT 20 40 55 75 80
LEFT 10 45 45 70 75
Speech audiometry, using the Maryland CNC Test, revealed speech recognition ability of 88 percent in the right ear and 96 percent in the left ear.
The Veteran was diagnosed with sensorineural hearing loss (in the frequency range of 500–4000 Hz) in the right and left ear. The VA examiner opined that the Veteran’s bilateral hearing loss was less likely than not caused by or a result of military acoustic trauma. The examiner reasoned that the Veteran’s July 1972 pre-induction examination and October 1972 separation examination indicated normal hearing in both ears and that the Veteran reported many years of construction work post-service. The examiner also noted that the Veteran reported an onset of symptoms six year prior. Thus, the VA examiner concluded that based on the Veteran’s history and his many years in construction work that the Veteran’s bilateral hearing loss was less likely than not related to or caused by military service.
Having considered the medical and lay evidence of record, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran’s bilateral hearing loss was incurred in-service or was otherwise related to military service.
The Board notes that the record demonstrates that the Veteran’s symptoms of hearing loss have not been continuous since service. The first documented evidence of record of hearing loss was the Veteran’s April 1999 private medical record, approximately 25 years after his separation from service. The passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Additionally, there is no medical evidence of record, including the Veteran’s own statements, that he was experiencing any continuity of symptomology for his hearing loss since his separation from service. During the May 2016 VA examination, the Veteran reported that he noticed a decrease in his hearing approximately six years prior. As such, there is no showing of a continuity of symptoms warranting service connection under the provisions of 38 C.F.R. § 3.303(b).
Turning to the medical opinion evidence, the Board finds the conclusion of the VA examiner to be of significant probative weight. The examiner explained the reasons for her conclusions based on an accurate characterization of the evidence of record, detailed examination findings, and consideration of the Veteran’s lay statements. 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 examiner noted that the Veteran did not experience hearing loss during service and that his pre-induction and separation examinations indicated normal hearing in both ears. The VA examiner concluded that based on the Veteran’s history and his many years in construction work that his hearing loss was less likely than not caused by or a result of military acoustic trauma.
The Board recognizes that the Veteran contends that his hearing loss was caused by his active service. The Veteran is certainly competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, while the Veteran is competent to describe the observable symptoms of hearing loss he does not have the training or expertise to render a competent opinion which is more probative than the VA examiner’s opinion on this issue, as this is a medical determination that is complex. Jandreau v. Nicholson, 492 F.3d 1372, 1376–77 (Fed. Cir. 2007). Thus, the Veteran’s lay opinion by itself is outweighed by the VA examiner’s findings. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). The VA examiner took the Veteran’s assertions into account and rendered a negative nexus opinion based on the Veteran’s own indication of post-service onset, his post-service noise exposure, and a review of the claims file. Thus, the Board finds the objective clinical findings of the VA examiner to be of more probative value than the Veteran’s lay assertions.
(CONTINUED ON NEXT PAGE)
Accordingly, as the preponderance of the evidence is against the claim for service connection, the benefit-of-the-doubt-rule is not for application, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102.
Nathaniel J. Doan
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD C. Robinson, Associate Counsel
For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org
For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency