Citation Nr: 1751554 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 16-02 485 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1945 to July 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newnan, Georgia which denied service connection for bilateral hearing loss. In June 2015 the Veteran filed his notice of disagreement, was issued a statement of the case in December 2015, and in January 2016 perfected his appeal to the Board. The Veteran testified at a videoconference hearing before the undersigned in September 2017. A hearing transcript is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran's current bilateral hearing loss disability did not have onset during active service, did not manifest within one year of separation from active service, and was not caused by his active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not all been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran asserted his belief that he suffers from bilateral hearing loss due to his years of service as a radio technician wherein he was exposed to excessive noise without ear protection in the radio room which was located below 20 mm guns, five inch guns, and 40 mm batteries. He stated that his hearing has become progressively worse and that he has to ask people to repeat themselves as he cannot understand what they are saying. When asked by his representative during the September 2017 hearing how long he suffered from hearing loss, the Veteran replied "Not that I know of at the time" and when asked when he started having hearing issues, he replied that "seriously after I retired about 25 years ago, 27 years ago, I started hearing badly, and, finally ended up with hearing aids." Hearing Transcript at 4. The Veteran reported during his hearing that he has been suffering hearing loss since approximately 1990, at which time he began to wear hearing aids. 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. §1110; 38 C.F.R. § 3.303 (a). "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). A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The Veteran's service treatment records are silent as to any treatment for his hearing and do not contain evidence of hearing impairment at entrance or separation from service. A May 2015 VA examination report confirmed that the Veteran has current bilateral hearing loss under 38 C.F.R. § 3.385. The report includes audiometric test results for both ears. Puretone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hz were 60, 60, 65, 65, and 65 dB respectively. Puretone thresholds in the left ear at 500, 1000, 2000, 3000, and 4000 Hz were 60, 60, 65, 70, and 70 dB respectively. Speech recognition scores obtained using the Maryland CNC Test were 72 percent for the right ear and 64 percent for the left ear. The examiner concluded that the Veteran's hearing loss was not at least as likely as not caused by, or the result of an event in military service. The examiner stated that hearing loss does not happen after separation from service if it is due to acoustic trauma, but rather is immediate and here the Veteran has stated that his hearing loss had its onset nearly 50 years after separation from service. The examiner also stated, "scientific evidence indicates that previously noise-exposed ears are not more sensitive to future noise exposure, and hearing loss due to noise does not progress (in excess of what would be expected from the addition of age-related threshold shifts) once the exposure to noise is discontinued." The examiner noted that the Institute of Medicine stated there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure, and although 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. Additionally, the examination report noted that hearing loss from noise exposure causes a notch in the shape of the hearing thresholds; in contrast to age-related hearing loss, which also produces high frequency hearing loss, but in a down-sloping pattern without recovery at 8000Hz. The examiner found no such notch in the Veteran's bilateral hearing loss. In October 2017, the Veteran submitted a September 2017 report from a private audiologist, L.M., AuD. Dr. L.M. opined that the Veteran's hearing loss was at least as likely as not caused by or a result of an event in military service, and included in her rationale medical research from the past ten years by Kujawa, Liberman, Lin, et al, which introduced the phenomenon of hidden hearing loss caused by an exposure to noise causing a temporary elevation in pure tone thresholds resulting in detrimental and permanent physiologic and histologic consequences to the peripheral auditory system. The audiologist explained: As a result of noise over exposure a temporary threshold shift (TTS) occurs. During the recovery phase of the TTS the outer hair cells return to status quo. With no outer hair cell damage, pure tone thresholds remain the same. However, damage does occur to the spiral ganglion neuron. At the time of over-exposure the synaptic neural cell swells creating a mis-firing of the neural impulses. As the swelling abates the TTS recovers, but the neuron is damaged. The cell bodies survive but have lost their connectivity function. The damage occurs quickly, within hours. But the death of the cell body in the spiral ganglion is slow (years), resulting in difficulty understanding speech in noise and may also be a contributing factor for tinnitus and hyperacusis. Loss of cochlear nerve connectors to the hair cells can occur well before loss of hair cells and therefore not detected on the audiogram. Kujawa, et al, believe that when age-related hearing loss (AHL) is combined with damage from previous TTS , the result is more severe than AHL without TTS history. Supportive research with post-mortem temporal bone studies found that for individuals with no noise exposure history "there was a steady decline in spiral ganglion counts from birth to death, despite the lack of hair cell loss, corresponding, on average to a loss of more than 30 percent of cochlear neurons over a lifetime." Lucus Viana, Cochlear Neuropathy in Human Presbycusis: Confocal Analysis of Hidden Hearing Loss in Post-mortem Tissue, 327 Hearing Research, 78-88, (September 2015). Kujawa's studies indicate a 50 percent loss of cochlear neurons after TTS event with a 90 percent cochlear neuron loss necessary to identify hair cell loss on the audiogram. Dr. L.M. opined that the Veteran is at least as likely as not to have been exposed to excessive noise while in service, resulting in TTS's which damaged neural cells and caused delayed onset hearing loss with poor word recognition scores. The audiologist noted that the Veteran has worn hearing aids for approximately 25 years which is consistent with delayed onset AHL. Weighing the evidence of record, the Board finds that the unfavorable evidence is more probative than the favorable evidence. First, the Veteran reports that he did not experience hearing loss until many years after separation from service. Second the VA opinion is highly probative as it relies on the facts of the case and shows application of medical principles to those facts in a logical manner. The private audiologist's opinion is more of an explanation as to the mechanics of how hearing is damaged from acoustic trauma coupled with what she reports is the opinion of one of the research article authors that the author believes that when age-related hearing loss is combined with previous temporary threshold shifts is more severe than age related hearing loss without a temporary threshold shift history. The Board finds this less probative than the VA examiner's opinion first, because Dr. L.M. relies on an assumed fact not in the record - that the Veteran experienced a temporary threshold shift during service. The Board finds this is contradicted by the Veteran's testimony that he did not know of suffering hearing loss at the time of his service or until many years after service. See Hearing Transcript at 4. There is nothing in the record, including Dr. L.M.'s opinion, to indicate such a temporary threshold shift during service. Rather, her opinion equates the exposure to acoustic trauma with a temporary threshold shift but does not explain how this is true in this case. Indeed, the opinion supports a grant of service connection in any case where an individual suffers from age related hearing loss and at some point during service was exposed to loud noise. The Board finds that the VA examiner's opinion is more consistent with the facts of this case and better reasoned. For these reasons, the Board concludes that the preponderance of evidence is against the claim. Hence, the appeal must be denied. There is no reasonable doubt to be resolved in this case. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs