Citation Nr: 18141775 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 12-20 637 DATE: October 11, 2018 ORDER Service connection for hearing loss is denied.   FINDING OF FACT The Veteran’s current hearing loss was not incurred during service. CONCLUSION OF LAW The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1965 to February 1969. This case is from an October 2011 rating decision. In a September 2016 decision, the Board granted service connection for tinnitus. The Board also remanded the hearing loss issue for additional development. 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 for hearing loss. Legal Criteria 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. § 1110; 38 C.F.R. § 3.303. “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)). 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 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 Consonant-Vowel Nucleus-Consonant (CNC) Test are less than 94 percent. 38 C.F.R. § 3.385. Analysis The Veteran contends that his hearing loss is the result of active service. Service treatment records (STRs) are absent reference to hearing loss. However, the Veteran’s DD Form 214 shows that while on active duty his military occupational specialty was “aircraft engine mechanic.” The Veteran also reported that while performing his duties he was exposed to constant noise from jet engines. Based on the nature of his service, the Board finds that that the Veteran was exposed to loud noise while on active service. Notably, the Veteran is already service connected for tinnitus based on the in-service noise exposure. The November 1965 service entrance examination report notes normal hearing. At that time, the American Standards Association (ASA) units for measuring hearing were used. Today, the International Standards Organization-American National Standards Institute (ISO-ANSI) units for measuring are used. The Veteran’s converted hearing test results were:   HERTZ 500 1000 2000 3000 4000 RIGHT 20 0 0 - 0 LEFT 20 15 5 - 5 An August 1966 examination report reflects ISO-ANSI-converted hearing test results as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 20 20 LEFT 10 10 10 20 25 The January 1969 separation examination report also notes normal hearing and shows audiology testing recorded the following ISO-ANSI-converted test findings: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 5 0 LEFT 15 5 5 5 15 On the accompanying Report of Medical History, the Veteran denied having or having had hearing loss. After service, a September 2010 private record notes no significant change in hearing from 2005 to 2010 based on hearing test results conducted as part of the Veteran’s employer’s hearing conservation program at a furniture company dating back to 2001. A June 2011 VA examination was conducted in connection with the claim. In the Board’s September 2016 decision, the accompanying medical opinion was considered inadequate. Pursuant to the Board’s remand, another VA examination was conducted in December 2016. A VA audiologist reported that the Veteran had mild-to-moderately severe sensorineural hearing loss at 2000 to 8000 Hz, bilaterally, noting the Veteran’s report of onset in 2003. It was noted that research studies have shown that hazardous noise exposure has an immediate effect on hearing, and does not have a delayed onset. The examiner concluded that it is less than likely that the Veteran’s sensorineural hearing loss in either ear is a result of noise exposure during service. The examiner noted consideration of both the 2009 Kujawa article (“Adding Insult to Injury: Cochlear Nerve Degeneration after “Temporary” Noise-Induced Hearing Loss”) submitted by the Veteran and the Institute of Medicine’s (IOM) 2005 study on military noise exposure, as well as other medical research and literature. The Board finds the VA audiologist’s December 2016 opinion persuasive given its thorough explanation with consideration of the Veteran’s specific history and the medical literature. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). However, in a January 2018 brief, the Veteran’s representative essentially contended that the Kujawa article is more compelling because it represents more recent research and it should not matter that testing for the study was on mice. To afford the Veteran all reasonable consideration for the duty to assist, the Board requested an expert medical opinion from the Veterans Health Administration (VHA). A May 2018 opinion was received and authored by a physician of the otorhinolaryngology section of the VA Healthcare System; thus, a medical professional possessing great expertise in this area of medicine. The VHA opinion notes that the Veteran had normal puretone hearing sensitivity from 500-4000 Hz in both ears at service entrance and separation. No evidence of a standard threshold shift (STS) at any test frequency in either ear at separation was specifically reported based on criteria employed by both OSHA and the National Institute for Occupational Safety and Health (NIOSH). It was noted that OSHA defines a STS in the occupational noise exposure standard as a change in hearing threshold, relative to the baseline audiogram for that employee, of an average of 10 decibels (dB) or more at 2000, 3000, and 4000 Hz in one or both ears, citing to https://wvvw.osha.gov. In addition, NIOSH was noted to define a STS as an increase of 15 dB in the hearing threshold level (HTL) at 500, 1000, 2000, 3000, 4000, or 6000 Hz in either ear, as determined by two consecutive audiometric tests, citing to http://www.nonoise.org/hearing/criteria/criteria.htm. With respect to the Kujawa medical article suggesting that noise exposure could cause delayed onset hearing loss, the VA physician noted that the Kujawa article discusses the long-term damage seen from temporary hearing threshold shifts, and in mice, not primates. Although the relevance of the findings to human hearing was noted to be debatable, it was determined that the research does not provide definitive evidence for delayed and progressive ear damage in non-human primates or humans. Moreover, the mice model of human diseases was noted to have failed in human trial studies. Additional medical articles were cited to in this regard. The May 2018 VHA opinion further states that in 2003 the IOM carried out a study mandated by Congress and sponsored by VA to provide an assessment of several issues related to noise-induced hearing loss and tinnitus associated with service in the Armed Forces since World War II to establish a reasonable basis for presumption. It was noted that the results of the study, contained in a 2005 release titled “Noise and Military Service Implications for Hearing Loss and Tinnitus” (https://www.iom.edu/Reports/2005/Noise-and-Military-Service-Implications-for-Hearing-Loss-and-Tinnitus.aspx), included (1) that it is not possible to predict which service members, overall, by period of service, or by occupational specialty, will be exposed (presumption); (2) that there is not sufficient evidence to determine whether noise-induced hearing loss can develop long after cessation of noise exposure; (3) that the anatomical and physiological data on recovery (animal studies) suggests that it is unlikely that delayed effects occur; and (4) that the most pronounced effects on hearing are measurable immediately after noise exposure. The conclusion of the IOM study was noted to be that there is no rational basis for predicting which service members would be exposed by either period of service, or, by occupational specialty. The May 2018 VHA opinion concludes that, although noise exposure in association with the Veteran’s duties as an aircraft mechanic during service is conceded, it was concluded to be less than likely that the Veteran’s hearing loss had its onset during service and/or is due to any event or incident of his service. In this case, there is no indication of hearing loss in complaints, treatment or diagnoses during service or within a year of separation from service. The January 1969 separation examination was normal. The earliest medical evidence of hearing loss is several decades after service with no indication that it manifested during, or within one year, of service. Moreover, a continuity of symptomatology is not shown as hearing loss and ear trouble were denied at that time. As to the theory of post-service hearing loss being related to in-service noise exposure, the competent expert medical evidence weighs against the nexus element of the claim. This is a medically complex question where the lay opinions of the Veteran and his representative have less evidentiary value, even if the theory is intuitive. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues). In that regard, the May 2018 opinion rendered by the VHA expert, a VA otorhinolaryngologist, constitutes such competent medical evidence (as does the previously detailed November 2016 VA audiologist’s opinion). Further, the May 2018 VHA opinion is clear and unequivocal, and it was based on the relevant information, including the relevant in-service and post-service information. Moreover, the examiner’s explanation is understandable, and all inferences appear to follow from the facts and information given. See Monzingo, 26 Vet. App. at 105-06; Nieves-Rodriguez, 22 Vet. App. at 304. Moreover, there is no medical opinion evidence to the contrary. As such, the Board has accorded it the greatest probative value, and finds that this medical opinion evidence weighs against the Veteran’s claim. In making this finding, the Board has considered the contentions of the Veteran and his representative. They primarily amount to disagreement with the medical experts. The experts though considered the Veteran’s specific history, his in-service noise exposure, the lack of STS, the possibility of delayed-onset hearing loss, the post-service noise exposure and the current hearing loss. Significantly, the experts explained why the Kujawa article, or similar articles, do not drive the result in this case and why the IOM study is not considered outdated and is relied on. In an August 2018 brief, the Veteran’s representative made similar contentions and cited to additional medical articles regarding noise-induced, delayed-onset hearing loss, the use of mice in research, and the expertise of Kujawa. This essentially amounts to further lay opinion disagreement with the medical opinions. The medical opinions, including that of the May 2018 VHA expert addressed these theories with sufficient explanation for the Board to decide the claim. The Board does not find that another opinion is necessary even if the exact articles were referenced in the opinions as the unrebutted general presumption of competence includes a presumption that physicians remain up to date on medical knowledge and current medical studies. See Monzingo, 26 Vet. App. at 106-07. (Continued on the next page)   In sum, the preponderance of the evidence is against the claim, particularly the nexus element. Thus, there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for hearing loss is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs