Citation Nr: 18160675
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-24 221
DATE:	December 27, 2018
ORDER
Entitlement to service connection for bilateral hearing loss is denied.
FINDINGS OF FACT
1. The Veteran has current bilateral sensorineural hearing loss that is considered a disability for VA purposes.
2. The Veteran was exposed to acoustic trauma via weapons fire during service as an infantryman in combat.
3. A hearing loss disability was not noted during service and the evidence does not support that it manifested to a degree of 10 percent or more within one year from separation from service.  The Veteran’s current bilateral sensorineural hearing loss is not etiologically related to his active service.
CONCLUSION OF LAW
The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran served on active duty in the U.S. Army from July 1966 to July 1968.  His service included deployment to the Republic of Vietnam.  His is a combat veteran and a recipient of a Purple Heart.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).
The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).
Service Connection
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.  For VA purposes, impaired hearing will be considered 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.
1.  Entitlement to service connection for bilateral hearing loss
The Veteran seeks service connection for bilateral hearing loss.  For the reasons that follow, the Board finds that service connection is not warranted.
The Veteran has a current diagnosis of bilateral sensorineural hearing loss.  Objective test results confirm his hearing impairment is of such severity that it is considered a disability for VA purposes.  38 C.F.R. § 3.385; October 2014 VA examination report. 
The Veteran’s military personnel records show he is a combat veteran who served in the infantry during deployment to the Republic of Vietnam.  He asserts exposure to weapons fire during combat and that his hearing loss began during service as a result of that exposure.  The Veteran’s military occupational specialty (MOS) of infantryman has a high probability of military noise exposure.  Such exposure is conceded.  
The Veteran has established a current disability and an in-service incurrence.  The Board must determine whether there is a nexus between the two.  For the disability of bilateral sensorineural hearing loss, VA law and regulations provides three avenues for such an analysis.  First, the Board will consider whether presumptive service connection is warranted under § 3.309(a).  Fountain v. McDonald, 27 Vet. App. 258, 264 (2015) (Sensorineural hearing loss is considered subject to § 3.309(a) as an organic disease of the nervous system.).  Second, the Board will consider whether service connection may be warranted under § 3.303(b), to include with the assistance of the provisions relating to continuity of symptomatology.  Lastly, the Board will consider if service connection is warranted on a direct basis.
As noted above, the Veteran’s military personnel records show he was a combat veteran and he asserts the occurrence of hearing loss during service due to exposure to weapons fire.  See April 2014 VA Form 21-526 (Veteran asserting hearing loss since service in infantry).  On the June 1968 Report of Medical History completed in conjunction with his separation examination, however, the Veteran reported that he did not have hearing loss.  The Board assigns greater weight to that affirmative statement made by the Veteran because it was relatively contemporaneous to the time he now asserts he incurred hearing loss.  As a result, the lay evidence does not support in-service incurrence of the disability itself.  It is also noted that the June 1968 separation examination included objective audiological testing and showed the Veteran did not have a hearing disability for VA purposes.  The provisions of 38 U.S.C. § 1154, therefore, do not establish that he incurred a hearing loss disability during service.  Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012) (establishing not only in-service occurrence of an event but also of the disability itself).
The Veteran’s May 1966 induction examination and June 1968 separation examination are of record and include objective audiological test results.  The regulatory standard for evaluating hearing loss was changed to require ISO-ANSI units in September 9, 1975.  Prior to that date, test results were regularly converted to ASA units.  To facilitate proper comparison, certain audiogram results may need to be converted back to ISO-ANSI units.  In this instance, the conversion was performed by the May 2016 VA examiner, who reviewed the induction and separation audiograms and found the induction audiogram required conversion.
The results of the converted May 1966 audiogram were as follows:
 	HERTZ 
 	500	1000	2000	3000	4000	5000	6000
RIGHT	15	10	10	NA	15	NA	NA
LEFT	15	10	20	NA	10	NA	NA
The results of the June 1968 separation examination were as follows:
 	HERTZ
 	500	1000	2000	3000	4000	5000	6000
RIGHT	0	-5	10	NA	-5	NA	NA
LEFT	-5	-10	10	NA	10	NA	NA
Review of these objective test results shows that the Veteran did not have hearing loss for VA purposes at separation from active service.  38 C.F.R. § 3.385.  As interpreted by the May 2016 VA examiner, there was no positive threshold shift in in either ear during service.  In fact, at each recorded level – 500, 1000, 2000, and 4000 hertz – there was actually an improvement in hearing.  The Board notes that the October 2014 VA examiner compared the unconverted May 1966 audiogram with the June 1968 audiogram.  In the right ear, those results showed a positive threshold shift of 10 decibels at 2000 hertz.  In the left ear, those results showed a positive threshold shift of 5 decibels at 4000 hertz.  The examiner determined that there was no positive threshold shift greater than normal measurement variability at any frequency between 500 and 6000 hertz in either ear.  Thus, under either the converted or non-converted audiogram results, there was no positive threshold shift greater than normal measurement variability in either ear.
The Board acknowledges that in the November 2018 appellate brief, the Veteran’s representative argued that there were significant threshold shifts in both ears that correlated to his exposure to excessive weapons fire.  The representative highlighted these shifts in the induction and separation audiograms.  The Board notes that some of the shifts highlighted actually showed improvement in hearing, not worsening.  Moreover, insofar as the representative alleged that the positive threshold shifts correlated to military noise exposure, the representative is not competent to reach such conclusion as it is a medical determination for which the representative does not have the proper medical training and/or expertise.  38 C.F.R. § 3.159(a)(1), (2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  The VA examiner’s determinations are the only competent evidence of record in that regard. 
The October 2014 and May 2016 VA examiners also opined on whether there was a direct nexus between the Veteran’s current sensorineural hearing loss and his active service.  The Veteran’s military noise exposure was acknowledged.  The examiners found there was no hearing loss at the time of separation from service, and there was no positive threshold shift greater than normal measurement variability in either ear.  The October 2014 examiner also indicated that the subsequent decline in hearing acuity to its current levels was consistent with the Veteran’s post-service noise exposure.  Post-service noise exposure was 20 years of work in a truck manufacturing plant in assembly, without the use of hearing protection.  Both examiners concluded that it was less likely than not the Veteran’s current disability was related to his in-service noise exposure.
Considered together, the examiners’ opinions are probative because they are grounded in medical literature, considered the Veteran’s lay statements, to include those concerning in-service and post-service noise exposure; and considered the relevant objective test results of record.  Contrary to the Veteran’s representative’s argument in the November 2018 appellate brief, their rationale did not violate Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993) because it was not based solely on the lack of hearing loss at separation from service.  
Given the forgoing, the Board makes the following findings.  The Veteran was exposed to acoustic trauma via weapons fire during combat but did not sustain a hearing loss disability.  As discussed above, consideration of his lay statements weighed against the incurrence of an in-service disability; as there was no other evidence to support the in-service incurrence of a disability, such a disability was not established pursuant to the provisions of 38 U.S.C. § 1154.  There is no competent evidence indicating hearing loss manifest to a degree of 10 percent or more within the one-year presumptive period following discharge from active service.  Thus, service connection on a presumptive basis via 38 C.F.R. § 3.309(a) is not warranted.  Additionally, as a hearing loss disability was not noted during service, the continuity of symptomatology framework is not of aid to his claim.  38 C.F.R. § 3.303(b).  
The Veteran, himself, is not competent to provide a direct etiological connection between his current disability and his active service because he lacks the requisite medical training and/or expertise.  See Jandreau, 492 F.3d at 1377 n.4.  His assertions as to the onset of symptomology during service were competent because they were readily observable but they were outweighed by his more contemporaneous statements made at separation from service.  There is no reasonable doubt to be resolved in this instance.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  The October 2014 and May 2016 VA examiner opinions weigh against a nexus between the Veteran’s current sensorineural hearing loss and his active military service.  For the aforementioned reasons, considered together, their opinions are probative.  The Veteran’s current sensorineural hearing loss is consistent with his post-service noise exposure.
In sum, the Board is cognizant of the Veteran’s exemplary service, including the circumstances of his service.  However, the Board is bound by law and regulations.  Service connection for bilateral hearing loss is not warranted on a presumptive basis under 38 C.F.R. § 3.309(a), pursuant to the continuity of symptomatology framework of § 3.303(b), or on a direct basis under § 3.303(a).  Accordingly, the claim of entitlement to service connection for bilateral hearing loss is denied.
 
C. CRAWFORD
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Mike A. Sobiecki, 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

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