Citation Nr: 20004571 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 14-22 429 DATE: January 21, 2020 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for left ear hearing loss is denied. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s right ear hearing loss disability is related to his active service. 2. A current left ear hearing loss disability for VA purposes has not been shown. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for a right ear hearing loss disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2018). 2. A left ear hearing loss disability was not incurred in or aggravated by service, and such incurrence may not be presumed. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1966 to November 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied service connection for hearing loss, tinnitus, and lipomas, to include as a result of herbicide exposure. In July 2017, the Veteran testified at a videoconference Board hearing held before the undersigned Veterans Law Judge (VLJ). A copy of the transcript is of record. The Board remanded the issues on appeal for additional development in February 2018. The directives having been substantially complied with, the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). This appeal was originally certified to the Board with two additional issues: entitlement to service connection for tinnitus, and entitlement to service connection for skin lipomas. However, the RO granted entitlement to service connection for each in an August 2019 rating decision. As such, the issues are no longer in appellate status before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board….to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection for Right Ear and Left Ear Hearing Loss Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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)). Depending on the evidence and the contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The United States Court of Appeals for Veterans Claims held that “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.” In evaluating claims of service connection for hearing loss, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). To make this determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system such as sensorineural hearing loss, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). Service connection for hearing loss can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2018). In the absence of proof of a current disability, there is no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis – Right Ear and Left Ear Hearing Loss The Veteran contends that exposure to loud noise during active service caused his current hearing loss disability. The Veteran provided lay testimony during his hearing with the undersigned VLJ that discussed his assertions that the hearing loss is attributed to his active service as an infantryman from 1966 to 1968, and that it commenced when he was in basic training. The Veteran also noted that during his work as a law enforcement officer that they used mandatory hearing protection during firearms training, and that he had no other sources of hazardous noise exposure after active service. The Board notes the Veteran’s exposure to frequent small arms and artillery gunfire during service, to include during service in the Demilitarized Zone between North and South Korea in 1968. VA has previously conceded exposure to hazardous noise in service with acoustic trauma, and the Board will not disturb that finding. First, the evidence of record demonstrates that the Veteran has a right ear hearing loss disability that comports with VA’s definition of disability resulting from hearing impairment. 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, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The first notation regarding possible hearing loss in the Veteran is in a letter from the Veteran’s primary care physician, a Dr. F.M.C., who notes in a statement to another physician, Dr. M.S. that the Veteran has had a loss of hearing in his right year since approximately 1997. Dr. M.S., an ears, nose, and throat (ENT) physician, performed his own audiological testing on the Veteran in February 2012 and noted a “dead ear” on the right, normal hearing on the left, and the presence of tinnitus. While the examination is not considered valid for VA compensation and pension examination purposes, for test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, the results were 100, 105, 105+, 105+, and 105+ for the right ear, and 10, 15, 10, 15, and 10 for the left ear. A speech discrimination of unknown type was performed but the testing person indicated the right ear could not be tested due to complete hearing loss in that ear. This Dr. M.S. provided a positive opinion for service connection in August 2013, saying the Veteran had right ear hearing loss, a normal left ear, and the presence of tinnitus, and that he considered the hearing loss and tinnitus are at least as likely as not the result of military service, based on his review of the records and the treatment of and observation of the Veteran while under his care. The Veteran’s first VA audiological testing results occurred in February 2012 when he was seeking hearing aids. While the examination is not considered valid for VA compensation and pension purposes, for test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, the results were 105, 105, 105, 105, and 105 for the right ear, and 5, 5, 5, 15, and 15 for the left ear. A Maryland CNC or other speech discrimination test was not performed. The Veteran first received a valid VA audiological examination in July 2013. Examination revealed right ear sensorineural hearing loss, with that ear showing significant hearing loss at 500 Hz and higher frequencies. The left ear did not have hearing loss for VA purposes. For the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, the results were 105, 105, 105, 105, and 105 for the right ear, and 10, 5, 5, 15, and 10 for the left ear. Maryland CNC testing was zero percent for the right ear, and 100 for the left. The puretone threshold average was 105 decibels for the right ear and 9 for the left ear. The Veteran testified before the undersigned VLJ in a May 2017 hearing. The Veteran indicated that he had an infantry background while in service and was exposed on an almost-daily basis to loud weapons ranging from rifles and pistols all the way to mortars and artillery pieces, and that his hearing had declined since service. The Veteran did emphasize that approximately back in 1997 that his right ear hearing loss had worsened greatly, and that he had ringing in his ears as well. In June 2019, the Veteran received another VA examination for his claimed hearing loss. Examination revealed right ear sensorineural hearing loss, with that ear showing significant hearing loss at 500 Hz and higher frequencies. The left ear did not have hearing loss for VA purposes. For the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, the results were 105, 105, 105, 105, and 105 for the right ear, and 10, 10, 5, 10, and 10 for the left ear. Maryland CNC testing was zero percent for the right ear, and 96 for the left. The puretone threshold average was 105 decibels for the right ear and 9 for the left ear. This June 2019 VA examiner provided a negative opinion for service connection for each ear, saying it was less likely than not, less than 50 percent probability, that the Veteran’s hearing loss was caused by or a result of an event in military service. Then, separating the discussion for each ear, the examiner pointed out that the Veteran’s right ear indicated normal hearing in service, both at service entrance and at separation from service, even though his military occupational specialty was that of an infantryman, a specialty with a high probability of hazardous noise exposure. The examiner pointed out there was not a significant shift in hearing upon separation. This June 2019 examiner also cited findings from the Institute of Medicine regarding auditory physiology that hearing loss from noise injuries occurs immediately following noise exposure, mentioning a 2006 study, and thus there was no scientific basis on which to conclude that the Veteran’s right ear hearing loss was caused by or as the result of military service, to include military noise exposure. No other etiological discussion was provided. For the left ear, the June 2019 VA examiner pointed out that the Veteran’s left ear did not meet the standard for VA hearing loss, and that the claims file did not have any auditory results that indicated otherwise. The Board thus notes that the requirement for a current hearing loss disability is met for the right ear, but not for the left ear. The Board notes the June 2019 VA examiner was likely referring to the study done by the Institute of Medicine (IOM) entitled Noise and Military Service: Implications for Hearing Loss and Tinnitus (September 22, 2005) (hereinafter IOM Report) to which the VA examiner attributed a statement saying that a delay of many years in the onset of noise-induced hearing loss following earlier noise exposure is extremely unlikely, without citation to a particular chapter, finding, or page. However, the Board notes the United States Court of Appeals for Veterans Claims (Court) has held multiple times in unpublished and non-precedential opinions in similar hearing loss cases that a medical text’s qualifying or contradictory aspects may affect the probative value and adequacy of any ensuing medical opinion that relies on the text, when the examiner fails to assess the impact of qualifying or contradictory statements in the medical text. See, e.g., No. 17-1875, 2019 U.S. App. Vet. Claims (June 18, 2019) (unpublished). Left Ear Hearing Loss Analysis The record establishes the Veteran has no current left ear hearing loss considered disabling for VA purposes, from either VA or private examination. The Board has conceded hazardous noise exposure while in service. However, the preponderance of the evidence is against the Veteran’s claim of service connection for left ear hearing loss. The Veteran’s lay statements contrast with a finding of normal hearing from VA and private examiners from 1997, 2012, 2013, 2018, and 2019. The Board notes there is no additional evidence in the Veteran’s favor, beyond his own claim from November 2011. In the absence of proof of a current disability, there is no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board notes that the June 2019 VA audiologist opined that any hearing loss was less likely than not due to the Veteran’s active military service. The finding for service connection requires proof of a current disability, and the Veteran’s examinations for left ear hearing loss do not reach the threshold of hearing loss for VA purposes. Thus, the preponderance of the evidence is against a finding of left ear current hearing loss disability for VA purposes, and therefore service connection for a left ear hearing loss disability is not warranted. 38 C.F.R. §§ 3.303, 3.385. Since the preponderance of the evidence is against the claim for service connection for hearing loss of the left ear, the benefit of the doubt rule is not applicable. 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, 55–57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim for left ear hearing loss is denied. Right Ear Hearing Loss Analysis The Board notes a mix of opinion but finds the June 2019 VA audiologist’s opinion to be of lesser probative weight because of its conclusory nature with no specifics as to the reasoning of the negative opinion. The Board notes with emphasis that the Court has previously noted in other similar cases that IOM report upon which the VA examiner relied and cited that a medical text must do more than just provide speculative generic statements about a disability or the relationship between the disability and purported causal factors. See, e.g., No. 17-1875, p. 11, 2019 U.S. App. Vet. Claims (June 18, 2019) (unpublished) (citing Wallin v. West, 11 Vet. App. 509, 514 (1998)). Furthermore, an excerpt from a generic medical text that does not apply medical principles regarding causation or etiology to the facts of the individual Veteran’s case generally won’t provide sufficient evidence, standing alone, to serve as the basis for an award of service connection. Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The Board notes from the IOM report itself that “[t]here 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” and that “definitive studies to address this issue have not been performed.” IOM Report, supra at 151-152, available at www.nationalacademies.org/hmd/Reports/2005/Noise-and-Military-Service-Implications-for-Hearing-Loss-and-Tinnitus.aspx. (Emphasis added.) The Board finds here that the June 2019 VA examiner’s reliance on general statements from an extensive medical study to the particular facts of this Veteran’s case is overly broad and not specific enough to provide any reasonable support of the VA examiner’s opinion. To be adequate, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board also finds it incongruous that this June 2019 VA examiner provided a positive nexus opinion regarding the Veteran’s tinnitus, an issue no longer on appeal, but on the same opinion, rejected that same nexus finding for the right ear without any further rationale or discussion. On the other hand, the positive opinion offered by the August 2013 private ENT physician, Dr. M.S., specifically noted a review of the Veteran’s records and his conclusions referenced detail of the examination and the lay statements of the Veteran, and therefore is considered to be of stronger probative value. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Importantly, there is no reason to doubt the credibility of the Veteran’s self-reported history of exposure to excessive noise during service, and experiencing a hearing loss during, and since, service. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). The record establishes the Veteran has current right ear hearing loss considered disabling for VA purposes, and the Board has conceded hazardous noise exposure while in service. When the evidence is in equipoise and there is reasonable doubt, as here, the Board gives the benefit of the doubt in favor of the Veteran. Competent evidence of a current right ear hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Here, both VA and private examinations establish the presence of right ear hearing loss. In-service noise exposure is conceded. The Board finds the June 2019 opinion to be of limited probative value because it cites only generalized statements that are conclusory rather than relating the opinion directly to the Veteran’s medical and lay evidence. In contrast, the Board finds the August 2013 private opinion by the Veteran’s ENT physician to be highly probative for reasons stated earlier. The Board finds that there is credible evidence of symptoms of right ear hearing loss in service and continuity of symptoms since service. When there is an equipoise of evidence, as here, the Veteran prevails on his claims. The Board finds that the evidence is at least in equipoise as to whether the Veteran’s current right ear hearing loss is related to his military service. As such, the Board finds a grant of service connection for right ear hearing loss disability is appropriate. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.