Citation Nr: 1619326	
Decision Date: 05/12/16    Archive Date: 05/19/16

DOCKET NO.  10-42 332	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUE

Entitlement to service connection for bilateral hearing loss. 


REPRESENTATION

Appellant represented by:	Tiffany R. Bodger, Esq.


ATTORNEY FOR THE BOARD

J. Dupont, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the military during World War II, from September 1944 to June 1946.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a December 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that determined there was new and material evidence since prior, final and binding, April and November 1998 rating decisions initially considering and denying this claim of entitlement to service connection for hearing loss.  So the RO reopened the claim, albeit continued to deny it on its underlying merits.  Similarly, in a June 2013 decision, the Board also determined there was the required new and material evidence, so confirmed the reopening of the claim.  The Board also then, however, like the RO, proceeded to deny this claim on its underlying merits.  The Veteran appealed the Board's decision to the U. S. Court of Appeals for Veterans Claims (Court/CAVC).  In an April 2014 Order, the Court granted a Joint Motion vacating the Board's decision denying this claim and remanding it back to the Board for further development and readjudication consistent with the terms of the Joint Motion.  To comply with this Order, the Board in turn remanded the claim in August 2014 to the Agency of Original Jurisdiction (AOJ).

This claim again was before the Board in August 2015, when the Board again remanded it to ensure compliance with the directives of the prior August 2014 remand.  There since has been compliance, certainly substantial compliance, with the remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  Consequently, the Board may now proceed to readjudicating this claim.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The most probative (meaning the most competent and credible) evidence of record does not show the Veteran had bilateral hearing loss during his service or to a compensable degree within a year of his discharge from service, or that his bilateral hearing loss is otherwise related to or the result of a disease, an injury or an incident of his service, including especially repeated exposure to loud noise and consequent injury (i.e., acoustic trauma).


CONCLUSION OF LAW

Bilateral hearing loss disability was not incurred in or aggravated by active military service, and sensorineural hearing loss in particular may not be presumed to have been incurred in service as an organic disease of the nervous system.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has duties to notify and assist a claimant in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  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 v. Nicholson, 19 Vet. App. 473 (2006).

The Veteran was provided this required notice in October 2009, prior to initially adjudicating his claim in December 2009, so in the preferred sequence.

As concerning the additional obligation to assist him with his claim, the claims file includes service treatment records (STRs), post-service clinical records, also evaluations concerning the Veteran's employment at the Idaho National Engineering Laboratory, and his personal statements and those of his accredited representative in support of the claim.  The Board has considered these statements and perused the record for references to additional treatment reports not on file, but has found nothing suggesting there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain. 

The Board also finds that an adequate medical opinion has been obtained, so additional examination for further comment is not required (meaning aside from the additional examination the Veteran already had on remand).  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA endeavors to provide an examination for a service-connection claim, even if not statutorily obligated to, it must ensure the examination is adequate, else, notify the Veteran why such an examination will not or cannot be provided).  The claims file includes VA examination reports specifically concerning his bilateral hearing loss from June 2010 with an addendum advisory medical opinion from August 2010, and from April 2015 with an addendum advisory medical opinion from November 2015.  The reports are predicated on his reported symptoms and clinical examination findings.  The reports contain the findings needed to determine whether service connection is warranted, that is, whether his bilateral hearing loss is attributable to his military service - including especially in the way of providing the required explanatory rationale.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  This is particularly true of the most recent April and November 2015 reports.

Given all that has occurred, the Board finds that all relevant facts have been properly and sufficiently developed and that no further development is required to comply with the duty to assist the Veteran in fully developing the facts pertinent to this claim.  All available evidence that could potentially substantiate this claim has been obtained, to the extent obtainable.


Legal Criteria

Establishing entitlement to service connection generally requires having competent and credible (so probative) evidence of:  (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation ("nexus") between the disease or injury in service and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).  

In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of the Veteran's service as shown by his service record, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a).

For some "chronic diseases," presumptive service connection is available.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, the disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 C.F.R. § 3.307.  

The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities specifically listed in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  A particular type of hearing loss - namely, sensorineural hearing loss - is one such disease since an organic disease of the nervous system.

A Veteran, however, must have a sufficient amount of hearing loss before VA considers it an actual ratable disability.  To wit, for the purposes of applying the laws administered by VA, impaired hearing only will be considered to be an actual ratable disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies 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 (2015).

The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss.  Hensley  v. Brown, 5 Vet. App. 155 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)).  Moreover, according to Hensley, there need not have been sufficient hearing loss at that time of service, or even within the one-year presumptive period after, to have constituted an actual ratable disability according to 38 C.F.R. § 3.385 (the regulation already mentioned defining hearing loss for VA compensation purposes); instead, the Veteran need only now satisfy the requirements of this VA regulation, not necessarily then, and have competent and credible evidence linking his current hearing loss to his service - as opposed to other ("intercurrent") causes.  See also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).
 

Analysis

In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, but with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, certainly not in exhaustive detail, the extensive evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim.

The Veteran asserts that he has bilateral (meaning left and right ear) hearing loss due to acoustic trauma from firing weapons and working around heavy equipment in service.  See October 2010 VA Form 9, Appeal to the Board.  Although he originally asserted his hearing loss began in service, through his representative he now instead asserts that it developed gradually over time, but nonetheless owing to noise exposure during his service.  See January 2010 and July 2014 statements.

The records concerning the Veteran's service indicate he was a Machinist's Mate.

An essential, and indeed most fundamental, element of a service-connection claim is that the Veteran must have proof of current disability.  The evidence reflects that the Veteran has received a diagnosis of bilateral sensorineural hearing loss.  See November 2009 statement from D. E. L., October 2013 statement from Dr. K. M., and June 2010 VA examination report.  During that June 2010 VA hearing evaluation, the following pure tone thresholds, in decibels, were noted at the indicated frequencies:





HERTZ



500
1000
2000
3000
4000
LEFT
25
35
50
55
60
RIGHT
15
45
55
60
70

The Veteran's pure tone threshold averages were 50 for the left ear and 57.5 for the right ear.  His speech recognition score was 96 percent for the left ear and 94 percent for the right ear.

The results of that VA hearing evaluation confirm the Veteran has sufficient hearing loss in each ear, so bilaterally, to satisfy the threshold minimum requirements of 38 C.F.R. § 3.385 to be considered an actual ratable disability according to VA standards.  Therefore, there is no disputing he has this condition being claimed.  There still however has to be relevant injury in service and, aside from that, attribution of this present condition to the injury in service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

The second essential element of a service-connection claim as mentioned is 
in-service incurrence or aggravation of a relevant disease or injury.  The Veteran's STRs are unremarkable for complaints of, treatment for, or diagnosis of hearing loss while in service.  However, Veterans Benefits Administration (VBA) Fast Letter 10-35 (September 2, 2010) lists the "Machinist's Mate" duty position as entailing a "Highly Probable" chance of exposure to hazardous noise.  Accordingly, and in consideration of his statements regarding exposure to loud weapon and equipment noise, exposure to hazardous noise is conceded for purposes of establishing a relevant in-service event.  

As already alluded to, the final element of a service-connection claim is the required correlation ("nexus") between the injury in service - which here, as mentioned, was the hazardous noise exposure - and the Veteran's current disability.  And, unfortunately, for the reasons and bases discussed below, it is in this equally critical respect that the evidence, on the whole, is less favorable to his claim.


As already noted, the Veteran's STRs are unremarkable for complaints of, treatment for, or diagnosis of hearing loss while in service.  Also when examined in anticipation of his separation from service, he passed the watch tick, coin click, whispered voice, and spoken voice tests with full scores bilaterally.  There was no evidence of ear disease or defect.  He does not remember undergoing those tests.  See January 2010 statement.  And admittedly that was during a time many years ago (World War II) when the more comprehensive audiogram was not used.  Still, there is other evidence in the file, especially in the way of subsequent hearing evaluations using audiometrics, providing more in-depth information regarding the status of his hearing acuity during the many years (indeed decades) since his service concluded.

Initially, though, there was no suggestion of sensorineural hearing loss within the initial post-service year, meaning by June 1947, certainly not to the required minimum compensable degree of at least 10-percent disabling to warrant presuming it had been incurred in service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307, 3.309(a).

Years later, from 1962 to 1987, the Veteran was employed at the Idaho National Engineering Laboratory.  During his March 1962 pre-employment examination, his hearing acuity was noted as 20/20 bilaterally, his eardrums were noted as "OK" bilaterally, and there was no evidence of any discharge from his ears.  During a November 1965 periodic examination, he responded "Yes" when asked whether he had ever had or had ever been treated for an ear disorder.  The disorder, however, was noted as "wax" (meaning ear wax or cerumen).  He denied defective hearing and denied having any physical defects or partial disabilities.


Throughout his period of employment at the Idaho National Engineering Laboratory, the Veteran had many audiograms testing his hearing acuity.  The first audiogram in November 1965 showed the following pure tone thresholds at the indicated frequencies:





HERTZ



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

To reiterate, in Hensley v. Brown, 5 Vet. App. 155, 157 (1993) the Court held that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  So based on the objective audiogram results, the Board finds that the Veteran still had normal hearing more than 19 years after separating from service.  No audiogram score was recorded upon periodic physical examination in October 1968.  But upon periodic examination in November 1970, the audiogram results were as follows:  





HERTZ



500
1000
2000
3000
4000
LEFT
5
0
5
10
20
RIGHT
5
0
0
20
20

Again, then, the Veteran's hearing was still within normal limits.

The first audiogram showing some degree of hearing loss, notably in the 4000 Hz frequency, was in November 1972, with the following results:






HERTZ



500
1000
2000
3000
4000
LEFT
10
10
10
15
25
RIGHT
5
5
0
15
25

The first audiogram showing sufficient hearing loss to be considered an actual ratable disability for VA compensation purposes, at least in the right ear, was in November 1976, with the following results:





HERTZ



500
1000
2000
3000
4000
LEFT
5
5
10
10
30
RIGHT
0
5
0
25
40

Therefore based on this objective clinical evidence, the Veteran first showed some degree of hearing loss more than 26 years after separating from service, and sufficiently impaired hearing (at least in the right ear) to be considered an actual ratable disability according to the threshold minimum regulatory requirements of 38 C.F.R. § 3.385 more than 30 years (i.e., more than three decades) after separating from service.  Ratable hearing loss disability for VA compensation purposes in the left ear was not first shown until even more recently, in October 1984.  The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service-connection claim.  In the appropriate circumstance, VA may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  See also Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder).  

Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

Through his representative, the Veteran asserts that his hearing loss had a delayed onset and gradually worsened over time, a theory he believes is supported by the audiogram records from his time of employment at the Idaho National Engineering Laboratory.  There are several nexus opinions addressing this theory of causation, both for and against the claim, but the Board finds the most probative of them to be the one from the VA compensation examiner in August 2015.

A November 2009 statement from D. E. L. explained that he had treated the Veteran since 2001.  He diagnosed sensory-neural hearing loss bilaterally and noted "a high frequency hearing loss" in the 4,000 to 8,000 Hz range.  He explained that this type of hearing loss is consistent with prior noise exposure.  He also explained that he had consulted with an audiology department employee at a private laboratory who reportedly had stated that she had seen similar "notch" hearing loss in Veterans she had worked with who had previous noise exposure of some kind.  Submitted with the statement was an internet article from the American Speech-Language-Hearing Association.  The article contains one paragraph explaining that prolonged exposure to harmful noise levels can damage hair cells in the cochlea and result in permanent hearing loss.  The article notes that such hearing loss usually develops gradually and painlessly.  But while there is indication that D. E. L. treated the Veteran personally for approximately eight years, there is no indication he reviewed the Veteran's claims file, including his STRs and relevant post-service employment audiograms to, in turn, provide the proper factual foundation and predicate for the opinion offered.  Although it is true that the Board cannot summarily dismiss an opinion that does not indicate it was based at least partly on review of the claims file, since there are other ways of obtaining a reliable history of the claimed condition (such as even from statements provided by the Veteran, himself), it is permissible to discount or even discredit entirely the probative value of the opinion if review of the claims file would have revealed evidence tending the undermine the basis of the opinion.  See Coburn v. Nicholson, 19 Vet. App. 427 (2006); Kowalski v. Nicholson, 19 Vet. App. 171 (2005).  Moreover, there is no "treating physician rule" requiring the Board to give deference to this doctor's opinion over those of the VA compensation examiners.  Both the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) and U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) have specifically declined to adopt a "treating physician rule" that would give preference to statements from a treating physician.  See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Guerrieri v. Brown, 4 Vet. App. 467 (1993).  And this is true even accepting that a treating physician may be more familiar with the Veteran's general state of health.

After June and August 2010 VA examination, the Veteran was diagnosed with bilateral sensorineural hearing loss.  The examiner conducted an audiological examination and reviewed the claims file, including the Veteran's post-service employment medical records.  She opined that that his hearing loss was not caused by or a result of his military noise exposure, citing to his normal hearing test results in 1965 and the fact that ratable hearing loss disability for VA compensation purposes was not first seen in the right ear until 1974 and the left ear until 1984.  She did not, however, comment on the Veteran's theory of delayed-onset hearing loss with gradual worsening over time.

Because of this deficiency, the Board had to obtain additional medical comment on this determinative issue of causation.

Also in the file, however, is an October 2013 statement from Dr. K. M., an ear, nose & throat specialist (ENT or otolaryngologist), who indicated that he had reviewed the Veteran's service medical records and post-service medical records.  He similarly observed a "notched high-frequency sensorineural hearing loss consistent with noise-induced hearing loss."  He explained that the Veteran's "separation audiogram did not show significant hearing loss, but this is irrelevant given the current knowledge regarding noise[-]induced hearing loss.  Studies of industrial hearing loss clearly document that the effects of noise are cumulative and may not be manifested until later in life."  He opined that it is more likely than not that the Veteran's "noise-induced hearing loss ... was caused by noise exposure during the time of military service."  But, notably, Dr. K. M. did not cite to specific studies or include copies of medical literature with his statement, as support for it.

Pursuant to the April 2014 Joint Motion granted by the Court, the Veteran's case was sent to a VA audiologist for an advisory medical opinion that considered whether the Veteran's hearing loss over time is suggestive of a connection to his service, as well as for medical treatise evidence regarding the notion of delayed and progressive noise-induced hearing loss.  To this end, the file was returned to the same examiner who had examined the Veteran and had provided the opinion in June 2010.  

After April 2015 and November 2015 review of the entire file, including the November 2009 statement, the June 2010 VA examination report, the October 2013 statement, and the Veteran's post-service medical records, the VA audiologist found it less likely than not that the Veteran's hearing loss was incurred in or caused by an in-service injury, event, or illness.  As rationale for her opinion, this examiner explained that the Veteran had passed a very gross measure of normal hearing when he entered service and when he separated from service.  She explained that this does not rule out high-frequency hearing loss at discharge.  She did, however, consider it additionally significant that the Veteran had hearing within normal limits in both ears upon examination in 1965, more than 19 years after separation from service.  She then addressed the November 2009 statement.  She wrote:

"While it is true that noise exposure does generally affect the high frequencies, the opinion of this provider does not establish a link between the veteran's military service and his current hearing loss.  It only addresses the veteran's hearing loss since 2001, 55 years after the veteran's release from the military."  See November 2015 VA examination report.

Regarding the article from the American Speech-Language-Hearing Association indicating "noise-induced hearing loss usually develops gradually and painlessly," she explained that the article does not propose that there is a delayed onset of noise-induced hearing loss.  See April 2015 VA examination report.

In regards to the October 2013 statement from Dr. K. M., she wrote:

"I have been asked to specifically address a statement submitted from Dr. [K. M.] in 2013 indicating that studies of industrial noise document that the effects of noise are cumulative and may not be manifested until later in life.  However, Dr. [K. M.] does not site any such studies nor does he address the above hearing tests from the veteran's civilian occupational hearing conservation program which shows normal hearing 19 years after the veteran's release from military service. Therefore, he does not provide any clear nexus between the veteran's current hearing loss and his military service."  See November 2015 VA examination report.

This commenting VA examiner also reviewed the medical literature of record submitted by the Veteran, personally, including a study referenced by his former representative in a May 2013 brief pertaining to changes in neuron synapses after noise exposure.  In response she explained:

"The Institute of Medicine [IOM] did a review of current literature in 2005 with the following findings. 

'FINDING: The evidence from laboratory studies in humans and animals is sufficient to conclude that the most pronounced effects of a given noise exposure on pure-tone thresholds are measurable immediately following the exposure, with the length of recovery, whether partial or complete, related to the level, duration, and type of noise exposure.  Most recovery to stable hearing thresholds occurs within 30 days.  

FINDING: 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.  Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur.' (Noise and Military Service: Implications for Hearing Loss and Tinnitus, Institute of Medicine, 2005, pg. 47).'

A written brief by the American Legion dated May 8, 2013 references a study, Kujawa S and Liberman MC (2009) Adding Insult to Injury:  Cochlear Nerve Degeneration after "Temporary" Noise-Induced Hearing Loss.  Journal of Neuroscience.  This study looks at changes in neuron synapses after noise exposure.  The study shows that there may be subclinical changes in the auditory system as a result of noise exposure, even in the absence of permanent threshold shifts.  The authors speculate that these changes could occur months to years after the exposure.  However, the authors do not indicate any time frame in which these changes could be seen.  The changes in the auditory system are also not necessarily linked to actual changes in auditory thresholds as measured on an audiogram.  The actual, measurable long-term effects of these changes in the auditory system are still unknown.


As this is a newer area of research and it is unknown what the long-term effects of the changes in the auditory system might be, it would be injudicious to apply the results of one article to make the claim that a hearing loss due to noise exposure could have its onset over 20 years after that exposure.  Until further research is done to corroborate the findings of these researches and assess the effects of these neural changes, this examiner must still concur with the Institute of Medicine that based on anatomy and physiology, it is unlikely that a delayed-onset of hearing loss occurs.

The current standard for measuring hearing loss for rating purposes is an audiogram.  The veteran had normal hearing in both ears on an audiogram done 19 years after his release from the military.  Neither of the two opinions referenced above provide a clear nexus between the veteran's current hearing loss and his military noise exposure.  The study referenced by the [May 2013] brief does indicate that there may be delayed changes in the auditory system after noise exposure.  However, it does not indicate that these changes would result in delayed changes in hearing as documented on an audiogram.  Therefore, it is the opinion of this examiner that, given the normal hearing in both ears 19 years after the veteran's release from the military, it is less likely as not that the veteran's hearing loss was caused by or a result of his military noise exposure."  See November 2015 VA examination report.

The Board finds that the opinions provided in the April 2015 and November 2015 examination reports to be the most probative medical nexus evidence of record.  The examiner reviewed the entire record, including the Veteran's STRs, post-service medical employment records, the November 2009 statement from D. E. L., the June and August 2010 VA examination reports, the October 2013 statement from Dr. K. M., and the submitted medical literature regarding noise-induced hearing loss that develops gradually and delayed-onset hearing loss.  The examiner also cited to medical literature that contradicts the literature submitted by the Veteran and explained that there is insufficient 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 the noise exposure (alleged precipitating event).  She additionally noted that neither the November 2009 nor the October 2013 statements provide clear nexus opinions linking the Veteran's current hearing loss to his military noise exposure.  There is no indication that D. E. L.'s November 2009 statement considered the Veteran's STRs or his post-service employment medical records prior to 2001.  The October 2013 statement from Dr. K. M. references medical literature, so seeming support for the propositions offered, but does not include or cite to specific literature supporting the rationale.  For these reasons, the Board finds the opinions provided in the April 2015 and November 2015 examination reports to be the most probative medical nexus evidence of record.  As such, the third element, the required nexus or correlation between the Veteran's current hearing loss and his in-service noise exposure, is not satisfied.  

The Board also has considered the Veteran's lay opinion that his hearing loss was caused by noise exposure during his service.  As acknowledged by the Veteran's representative in the same July 2014 statement, the Veteran is not competent to render a medical opinion.  Here, the evidence does not show that he has the necessary training or expertise to render a competent opinion on this complex medical issue, which cannot be based on lay observation alone given the time that elapsed between his service and the onset of his hearing loss many years later.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  Thus, his opinion by itself cannot support his claim, and is probatively outweighed by the contrary findings of the VA compensation examiner, who is an objective medical professional specializing in audiology who considered 

his statements and the pertinent evidence of record and found against such a relationship or cause-and-effect correlation.  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).

Finally, because there is no evidence suggesting that the Veteran's current hearing loss initially manifested during his service or within a year following his discharge from service, service connection is not warranted based on chronicity (permanency) in service or continuity of symptoms after service, and is not warranted on a presumptive basis for hearing loss alternatively manifesting to a compensable degree within one year of separation.  See 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a).

In summary, because the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and service connection for hearing loss is denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

The claim of entitlement to service connection for bilateral hearing loss is denied. 



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs