Citation Nr: 18159664 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 07-08 331 DATE: December 19, 2018 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss disability developed many years after his separation from service and is not related to service or to any incident therein. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from April 1967 to January 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2005 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a travel Board Hearing in June 2012 which was cancelled by the Veteran. To date, he has not requested a new Board hearing. Accordingly, the Board considers his hearing request to be withdrawn. 38 C.F.R. § 20.704(d). In October 2010, the Board remanded this case for additional development, and the case was subsequently returned for further appellate review. In October 2015, the Board denied the claims of entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran subsequently appealed these denials to the Court of Appeals for Veterans Claims (Court). In an August 2016 Joint Motion for Remand (JMR) and Order, the Court vacated the Board’s October 2015 decision and remanded the claims to the Board for further adjudication. In November 2016, the Board remanded the claim to the RO for additional development in accordance with the August 2016 JMR. In a May 2017 rating decision, the RO granted service connection for tinnitus, assigning a rating of 10 percent effective February 7, 2003. As the Veteran has not appealed his initial rating assignment or his effective date, the Board finds that this grant of service connection constitutes a full award of the benefit sought on appeal with respect to that issue. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning “downstream” issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200. In August 2017 and January 2018, the Board sought two expert opinions in connection with this appeal from the Veterans Health Administration (VHA). The requested opinions were received in October 2017 and August 2018. Entitlement to service connection for bilateral hearing loss. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309 (a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year, to include organic diseases of the nervous system. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Hearing loss is classified as an organic disease of the nervous system. Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see Fountain v. McDonald, 27 Vet. App. 258, 263-64 (2015) (to establish service connection based on a continuity of symptoms under § 3.303(b), the evidence must show: (1) a condition “noted” during service; (2) post-service continuity of the same symptoms; and (3) a nexus between the present disability and the post-service symptoms); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309 (a) may be considered for service connection under 38 C.F.R. § 3.303(b)). 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; when the auditory thresholds for at least three of the above 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. However, “when audiometric test results at a Veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. The Veteran seeks service connection for bilateral hearing loss. He asserts that as a result of his duties working in the boiler room, laundry room, and battle station during combat aboard the USS Canberra, he was exposed to noise associated with large washing equipment, alarms sounding, and guns firing. He reported that noise protection was not available. The Board finds that the Veteran’s military history and his contentions regarding in-service exposure to acoustic trauma are consistent with the circumstances of his service. The Veteran’s period of active duty was from April 1967 to January 1971. Audiometric testing at enlistment showed normal hearing. Service treatment records do not document complaints of or treatment for hearing loss. At his January 1971 separation examination, the Veteran scored 15 out of 15 on whisper voice testing. However, the Veteran’s military personnel records also contain a Memorandum for Employee Exposed to Hazardous Noise from the Department of the Air Force, with a Subject line reading, “Notification of Permanent Threshold Shift.” The memorandum includes a statement indicating that the Veteran’s hearing test showed a significant potential hearing loss compared to his initial (reference) audiogram. It was recommended that he undergo additional evaluation to determine if his hearing loss was progressing, and that he undergo fitting for earplugs. At a March 2006 audiological evaluation, the Veteran reported problems with tinnitus, hearing loss, and balance. The audiologist noted the Veteran previously was seen for testing in March 2004 and results had then indicated that the Veteran had normal hearing in both ears. Audiological testing in March 2006 revealed mild hearing loss consistent with sensorineural hearing loss in the left ear, normal hearing in the right ear, and good speech discrimination in both ears. The audiologist also noted the Veteran did not pass balance testing, which suggested possible vestibular problems. Although an electronystagmography evaluation was recommended, no such evaluation was conducted. At a January 2007 audiological evaluation, the Veteran reported a 35-year history of hearing loss, noting that he had significant noise exposure in service, including engine noise, artillery, and explosions. The audiologist noted the Veteran also had occupational noise exposure in his post-service career as a firefighter. Pure tone threshold results indicated 50, 40, 50, 50, and 60 decibels in the right ear and 65, 60, 60, 65, and 70 decibels in the left ear, respectively at 500, 1000, 2000, 3000, and 4000 Hertz. The audiologist diagnosed the Veteran with moderate hearing loss at all frequencies in the right ear and moderate to severe hearing loss at all frequencies in the left ear. She opined that the Veteran’s hearing loss was more likely than not related to noise exposure in service but did not provide a rationale. In August 2010 and September 2016, the Veteran’s wife also reported that the Veteran has had hearing difficulties since his discharge from service and that he asks people to repeat themselves. At the November 2010 VA audiological examination, the Veteran reported he had difficulty understanding speech and hearing his wife, children, and the television. The examiner diagnosed the Veteran with non-organic hearing loss. The report does not contain the puretone threshold results needed for rating purposes. The Veteran had 16 percent speech recognition in the right ear and 10 percent speech recognition in the left ear, consistent with non-organic hearing loss. The examiner also reported that the Veteran could hear and understand him at a distance of five feet but the Veteran was not able to hear speech at 100 decibels during speech recognition testing. He also opined that the Veteran’s hearing loss was not the result of acoustic trauma in service as a March 2004 audiological evaluation conducted 33 years after service indicated normal hearing in both ears and the Veteran had normal hearing when he separated from service. At a May 2012 audiometric evaluation, the Veteran reported a history of subjective hearing loss that became evident upon separation from service. He also indicated that his hearing loss was subjectively progressive. Pure tone audiometric thresholds indicated moderate sensorineural hearing loss bilaterally. The clinician recommended a consultation for binaural hearing aid fitting. The July 2012 VA audiological examination revealed audiometric findings consistent with non-organic hearing loss. The examiner opined that the Veteran’s hearing loss was not the result of acoustic trauma in service and provided the same reasoning as provided in conjunction with the November 2010 VA audiological examination. He explained that there is no delayed effect between noise exposure and hearing loss because once the exposure to noise is discontinued there is no further progression of hearing loss as a result of noise exposure. He also opined that the Veteran’s hearing loss was likely related to “possible vestibular problems” as noted in the March 2006 audiological evaluation. The Court of Appeals for Veterans Claims and the Board note that “possible vestibular problems” is an unproven medical diagnosis and thus, the examiner’s opinion is inadequate. In September 2016, the Veteran submitted medical literature of research conducted by Dr. Sharon G. Kujawa and Dr. M. Charles Liberman regarding cochlear nerve degeneration after temporary noise-induced hearing loss. He also submitted medical literature of research conducted by Dr. Stephen A. Fausti and Dr. Debra J. Wilmington regarding auditory and vestibular dysfunction associated with blast-related traumatic brain injury. A May 2017 VA audiological examination revealed pure tone thresholds of 30, 30, 40, 40, and 45decibels in the right ear and 35, 45, 50, 50, and 50 decibels in the left ear, respectively at 500, 1000, 2000, 3000, and 4000 Hertz. The audiologist noted the Maryland CNC test was not conducted as the use of a word recognition score was not appropriate. The audiologist diagnosed bilateral sensorineural hearing loss and opined that there was no permanent positive threshold shift in service greater than normal measurement variability in both the right ear and left ear. He further reasoned that because the Veteran had normal hearing at enlistment and normal hearing at a test conducted in October 1980, his hearing was stable and no significant threshold shifts occurred in service. The examiner did not address the medical literature the Veteran submitted in September 2016. As noted above, the Board sought a VHA expert medical opinion from an otolaryngologist in August 2017 and January 2018. An opinion was provided in October 2017 by an audiologist and an addendum opinion was provided by an otolaryngologist in August 2018. In October 2017, the audiologist noted that she could not render an opinion as to whether the Veteran’s bilateral hearing loss was related to his conceded exposure to excessive levels of noise in service without resorting to mere speculation. She explained that she was unable to ascertain the presence or absence of a positive significant threshold shift in either ear when comparing the Veteran’s separation audiogram and pre-enlistment audiogram. However, she did not address the Memorandum for Employee Exposed to Hazardous Noise from the Department of the Air Force, with a Subject line reading, “Notification of Permanent Threshold Shift,” in the Veteran’s service personnel records. When addressing the line of research conducted by Dr. Kujawa, the audiologist opined that this research did not overturn the medical conclusions of the Institute of Medicine (IOM) report. She explained that the premise that delayed hearing loss occurs even with apparent recovery of hearing thresholds simply misstates the legal basis for disability and that disability is result of permanent impairment. She also opined that “accepting such a theory effectively strips the Government of any effective defense against claims that any noise exposure leads to hearing loss many years later that is causally related to original exposure.” The Board notes that it did not ask the audiologist to provide an opinion on the legal adequacy of the line of research conducted by Dr. Kujawa but instead asked for a medical opinion on the question of whether the Veteran’s hearing loss is related to service, which she did not provide. As for the impact of the Veteran’s acoustic trauma on the hair cells in his cochlea, and whether it was at least as likely as not that his hearing loss occurred sooner, or progressed to a greater degree of severity than it otherwise would have, as a result of his exposure to acoustic trauma in service, the audiologist opined that it was less likely than not that the Veteran’s bilateral hearing loss is related to acoustic trauma in service, relying upon the on absence of any reports or complaints of vestibular pathology or blast-related traumatic brain injury in service. However, her opinion did not address the question that was asked, i.e. whether the Veteran’s hearing loss occurred sooner, or progressed to a greater severity than it otherwise would have, as a result of his conceded exposure to excessive levels of noise in service. Thus, the opinion was inadequate. In January 2018, the Board sought an addendum opinion from an otolaryngologist which was provided in August 2018. The VHA expert opined that the Veteran’s hearing loss is less likely than not related to conceded exposure to excessive levels of noise in service. He explained that the Veteran’s normal hearing examination in March 2004 argues against the finding that the Veteran’s hearing loss is related to in-service noise exposure. He noted that a normal hearing examination signifies that the Veteran’s hair cells were functioning normally in 2004, thirty-three years after separation examination. The VHA expert also opined that it was less likely than not that the Veteran’s hearing loss occurred sooner or progressed to a greater degree of severity than it otherwise would have, as a result of acoustic trauma in service. The otolaryngologist explained, in addressing the study quoted regarding cochlear nerve degeneration after noise-induced hearing loss by Kujawa and Liberman in 2009, that in a mouse model exposed to noise, temporary threshold shifts recover but cochlear nerve elements display degeneration. This study was a mouse model demonstrating histologic changes in the mouse inner ear after noise exposure. There was no evidence to support the same mechanism occurs in humans exposed to noise. There was also no evidence that these histologic changes reported in this mouse model produce any clinical symptoms in humans. He concluded that the article by Kujawa and Liberman speculates that these findings in the mouse model could be translated to humans, but does not provide evidence to support these findings. After review of the record, the Board finds that service connection for a bilateral hearing loss disability is not warranted Turning first to the Veteran’s statements, the Board acknowledges that laypersons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, while the Veteran may be competent to report the manifestation of hearing loss symptoms, he is not competent to provide medical opinions regarding the causes or aggravating factors of that condition. As the Veteran has not shown to have appropriate medical training and expertise, he is not competent to render probative (i.e., persuasive) opinions on medical matters. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Bostain v. West, 11 Vet. App. 124, 127 (1998); Routen v. Brown, 10 Vet. App. 183, 186 (1997) (“a layperson is generally not capable of opining on matters requiring medical knowledge”). Hence, his lay assertions in this regard have no probative value. In addressing the probative evidence of record, the Board finds that the negative opinion of the August 2018 VHA expert, provided after reviewing the entirety of the claims file, is highly probative as it reflects consideration of all relevant facts. The examiner provided a detailed rationale for the conclusion reached. His conclusion is supported by the medical evidence of record, which includes a normal hearing examination in March 2004; diagnoses of non-organic hearing loss; and findings that delayed onset hearing loss has not yet been ascribed in humans. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Significantly, there is no probative medical opinion of record to the contrary. The Board is grateful to the Veteran for his honorable service, and regrets that a more favorable outcome could not be reached. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel