Citation Nr: 18152435 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 11-32 380 DATE: November 21, 2018 ORDER Service connection for hearing loss is denied. FINDING OF FACT The Veteran’s hearing loss is not shown to be related to service. CONCLUSION OF LAW The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION In June 2016, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ). The Board notes that the VLJ who conducted the June 2016 hearing is no longer available to participate in the adjudication of the Veteran’s claim. As such, in a September 2018 correspondence, the Veteran was offered an opportunity to have another Board hearing. However, in an October 2018 correspondence, the Veteran declined a second Board hearing. In September 2016, the Board granted service connection for tinnitus and remanded the claim on appeal. The remand directives have been completed to the extent that further appellate review is now appropriate. 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). Entitlement to 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, 1131; 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 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, 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Facts and Analysis The Veteran contends that he has hearing loss due to his military service. In this regard, in an April 2010 notice of disagreement, he reported that he served in the artillery. He also reported being exposed to constant, loud noise from guns firing while serving in Vietnam. During the June 2016 Board hearing, the Veteran reported being near large artillery guns when they fired and firing rifles while in service. He also reported working as a laborer after discharge and being exposed to less noise in this occupation than he was exposed to during service. He further reported that people complained that he was not listening to them after discharge. The Veteran’s service personnel records (SPRs) reflect that he served in an artillery unit in Vietnam. The Veteran’s service treatment records (STRs) show that he denied experiencing hearing loss on a February 1966 report of medical history. His STRs also include audiometric testing. The Board notes that, prior to October 31, 1967, service department audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). The Veteran’s STRs include an examination from December 1963. The December 1963 examination report also indicates additional information was added at the Veteran’s entrance into service. This includes audiometric test results that appear to have been obtained during audiometric testing in February 1964. In addition, the Veteran’s STRs include a separation examination conducted in February 1966. The Veteran was afforded a VA examination in regard to this claim in January 2009. He reported being exposed to excessive noise from artillery for two years during service. He also reported working in building and road construction for fifteen or twenty years after his discharge from service. The Veteran described experiencing difficulty understanding speech. The examiner diagnosed the Veteran with moderately severe right ear hearing loss and mild to moderately severe left ear hearing loss. Thereafter, the Veteran was afforded another VA examination in February 2010. The examiner reviewed the Veteran’s file. She performed audiometric testing and confirmed that the Veteran has bilateral hearing loss. However, she found that it is unlikely that his hearing loss is due to in-service noise exposure. Subsequently, in September 2016, the Board remanded this claim to obtain another examination and opinion that specifically considers several studies completed by a Dr. Kujawa in regard to the etiology hearing loss. Pursuant to the September 2016 Board remand, the Veteran was afforded another VA examination in September 2017. The examiner found that the Veteran has bilateral hearing loss. She noted that the Veteran did not have hearing loss prior to his entrance into service. The examiner also noted that the Veteran served in the artillery, with seven months service in Vietnam, and denied using hearing protection during service. She reported that, after discharge, the Veteran worked as a heavy equipment operator for fifteen years and stated he used hearing protection intermittently. The examiner also reported the Veteran had post-service recreational noise exposure while hunting without hearing protection. The examiner found that the Veteran’s hearing was normal at entrance and separation from service and was without any significant threshold shifts at any test frequency. The September 2017 examiner provided an addendum opinion in July 2018. She concluded that the Veteran’s hearing loss is less likely than not due to his military service. The examiner noted that the Veteran’s induction and separation examinations showed that his hearing was within normal limits at all test frequencies. The examiner also noted that the Veteran was exposed to loud noise during his civilian jobs after his military service. The examiner reported that a 2005 Institute of Medicine (IOM) study found that available data shows it is unlikely that noise exposure results in delayed effects on hearing. She stated that, after extensive consideration, she found Dr. Kujawa’s studies do not overturn the conclusions of the 2005 IOM study. She explained that Dr. Kujawa’s studies do not establish that delayed-onset hearing loss occurs. The Board finds that the Veteran’s hearing loss is not caused by or otherwise related to his military service. In this regard, the September 2017 examiner’s examination findings and subsequent July 2018 addendum opinion are clear and unequivocal and are based on the relevant information, including the Veteran’s statements, SPRs, STRs, and post-service medical records. In addition, the examiner’s explanations are logical and follows from the facts and information given. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Furthermore, the examiner considered Dr. Kujawa’s studies and explained why she found that the 2005 IOM study is more probative as to the possibility of delayed-onset hearing loss. Thus, her conclusion that the Veteran’s hearing loss is less likely than not caused by, or incurred in, service is highly persuasive and probative evidence. Moreover, this opinion is consistent with the negative opinion provided by the prior VA examiner. While the Veteran believes that his hearing loss is related to service, this is a complex medical question outside the competence of a non-medical expert to determine whether such a cause-and-effect relationship exists in this particular case. This nexus question involves complex medical matters requiring expert consideration of the nature of the Veteran’s in-service symptoms, his post-service symptomatology, and the medical significance of these factors in the context of his current hearing loss. These medical questions cannot be considered within the competence of a non-expert lay witness. Thus, the Veteran, as a lay person, has not established the competence needed to rebut the expert medical opinion. See Fountain v. McDonald, 27 Vet. App. 258, 274-75; Monzingo, 26 Vet. App. at 106. (Continued on the next page)   Accordingly, the Board finds that the preponderance of the evidence shows that the Veteran’s hearing loss is not related to service. Therefore, the benefit-of-the-doubt doctrine is not applicable and service connection for hearing loss is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JEBBY RASPUTNIS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Jimerfield, Associate Counsel