Citation Nr: 20005459 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 13-22 383 DATE: January 22, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to September 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision. The Veteran testified before the undersigned during a March 2016 hearing. This matter was most recently before the Board in April 2018, when it was remanded for additional development. Entitlement to service connection for bilateral hearing loss The Veteran contends his bilateral hearing loss is the result of exposure to hazardous weapons fire noise without hearing protection during basic training. He further asserts hearing loss symptoms began during service and have continued since. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases may be presumed to have been incurred in or aggravated by service if they manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Moreover, if those same diseases are noted during service, continuity of symptomatology can show chronicity and subsequent manifestations of the same disease is presumed to be service connected. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-99 (1997) (Overruled on other grounds by Walker, 708 F.3d 1331). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran has a current diagnosis of bilateral hearing loss as evidenced by VA treatment records and multiple VA examinations, to include those performed in February 2012 and June 2016. See 38 C.F.R. § 3.385. Hearing loss is an organic disease of the nervous system, an enumerated condition under 38 C.F.R. § 3.309(a). See VA Under Secretary for Health Memorandum (Oct. 1995); see also Fountain v. McDonald, 27 Vet. App. 258 (2015) (stating “the Secretary has made clear that sensorineural hearing loss is considered subject to § 3.309(a) as an ‘[o]rganic disease[ ] of the nervous system’“). However, this hearing loss disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The medical evidence of record does not show the Veteran was diagnosed with a hearing loss disability for VA purposes prior to his initial VA audiological examination in February 2012, over four decades after his separation from service and well outside the one-year applicable presumptive period. 38 C.F.R. § 3.307(a)(3). While the Veteran is competent to report having experienced symptoms of hearing loss consistently since service, he is not competent to provide a diagnosis in this case, as the criteria for a hearing loss disability for VA purposes require specific measured auditory thresholds or speech recognitions scores using the Maryland CNC Test. 38 C.F.R. § 3.385. Furthermore, though the Veteran has stated on multiple occasions, including during his March 2016 Board hearing testimony, that he first experienced hearing loss symptoms during service and these symptoms have persisted since, his post-service medical records prior to 2012 are silent for complaints of hearing loss. A February 1999 psychosocial assessment in his VA treatment records indicates his hearing was good, and a later August 2010 physical examination to establish care noted gross hearing acuity was intact. These assessments contradict the Veteran’s accounts of continuity of symptoms since service and weigh against the credibility of these statements. While the Board finds the evidence of record fails to establish that the Veteran’s bilateral hearing loss meets the criteria for presumptive service connection as a chronic condition under 38 C.F.R. § 3.307, service connection for bilateral hearing loss may still be granted on a direct basis. Hensley v. Brown, 5 Vet. App. 155, 160 (1993) (“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”). A February 2012 VA examination was the first assessment to show the Veteran has a hearing loss disability for VA purposes with thresholds above 40 decibels at the 3000 Hertz and 4000 Hertz ranges. The examiner noted the Veteran reported significant noise exposure related to weapons training while in service and denied post-service noise exposure, though he was employed as a carpenter and a corrections officer, a position that required annual weapons qualifications with the use of hearing protection. The examiner opined the Veteran’s hearing loss was less likely than not related to service; however, as discussed in the May 2016 Board remand, the examiner based this finding on an erroneous medical history, citing a threshold shift in the Veteran’s right ear during service rather than the left ear as reflected in his service treatment records. For this reason, the February 2012 nexus opinion is not entitled to probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A subsequent June 2016 VA examination reported similar findings to the prior February 2012 examination, with additional information about post-service noise exposure, specifically that the Veteran experienced noise exposure as a carpenter for 15 years but reported use of ear protection as needed. The examiner then opined the Veteran’s hearing loss was less likely than not related to service, stating that the objective evidence from service, specifically audiograms at entry and separation, show no hearing loss disability or significant shift in hearing, even with conversion from ASA to ISO-ANSI standards. The threshold shifts, she argues, were no greater than normal measurement variability, and absent a showing of objectively verifiable noise injury, any association between the Veteran’s service-connected tinnitus and hearing loss is merely speculative. In a August 2017 remand, the Board found this June 2016 VA examiner’s opinion to be inadequate, noting that although the Veteran’s hearing loss at separation was not adequate to meet the regulator threshold for a hearing loss disability for VA purposes, the premise of examiner’s assessment was of questionable accuracy since the United States Court of Veterans Appeals (Court) has found thresholds above 20 decibels show some degree of hearing loss. Hensley, 5 Vet. App. at 157. Therefore, the June 2016 opinion is not entitled to probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. An August 2017 VA addendum opinion echoed the findings of the prior examiners, finding the Veteran’s bilateral hearing loss was less likely than not related to military noise exposure. As rationale, the examiner cited entrance and separation audiograms, stating the results were within normal limits and showed no threshold shift outside normal measurement variability. The examiner also cited a 2005 Institute of Medicine study that concluded there was an insufficient scientific basis to conclude hearing loss attributable to noise exposure will develop long after the noise exposure. As discussed in the most recent April 2018 Board remand, this addendum opinion failed to address the issues raised in the prior August 2017 remand, specifically the questionable accuracy of the finding that the Veteran’s hearing was normal at separation. Furthermore, the examiner failed to provide a basis for the finding that the threshold shifts between entrance and separation with within normal measurement variability for audiological testing, especially given the earlier finding of a significant threshold shift by the February 2012 VA examiner. Finally, the examiner failed to address recent lay testimony from the Veteran’s March 2016 Board hearing in which he asserted he suffered hearing loss during basic training but was discouraged from seeking treatment. For these reasons, the August 2017 addendum opinion is not entitled to probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. After the most recent remand, VA scheduled an examination in October 2018 to obtain a new opinion. The Veteran failed to report for this examination. A second appointment was scheduled in August 2019, but he again failed to report. In pursuing a claim, a claimant has some responsibility to cooperate in the development of all facts pertinent to his claim, and the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). The record does not contain any communication from the Veteran requesting that the exam be rescheduled or providing a reason for missing the scheduled appointment. As there is no evidence showing good cause for the Veteran’s failure to report for his scheduled examination, the Board must decide the appeal based on the evidence of record. 38 C.F.R. § 3.655. The Veteran’s post-service treatment records contain no discussion of hearing loss prior to February 2012, the date of the Veteran’s first VA examination for hearing loss. Prior to that, the only references to his hearing are provided in general assessments, such as the previously noted February 1999 psychosocial assessment and August 2010 physical examination to establish care, neither of which indicate complaints of hearing loss. More recent audiological consults, such as those from July 2013 and June 2017, provide descriptions of the Veteran’s current disability without any evidence that goes toward showing a relationship between his current hearing loss and military service. The Veteran’s service treatment records contain audiological evaluations from the Veteran’s entry to and separation from service. Though a comparison of these examinations shows a potentially significant threshold shift in the left ear, these records are silent for any complaints of hearing loss. The only possible exception is the Veteran’s report of medical history at separation, which notes ear, nose, or throat trouble; however, written remarks accompanying this form indicate this notation may relate to the removal of the Veteran’s tonsils rather than a complaint of hearing problems. Based on audiometric testing, the Veteran did not have a hearing disability for VA purposes at the time of his separation from service. Although there is evidence indicating the Veteran’s hearing at separation fell outside normal limits and the threshold shift in his left ear may potentially indicate aggravation of a hearing loss disability, the record contains no probative medical evidence showing the Veteran’s hearing loss was at least as likely as not the result of in-service noise exposure. The Board has found the past VA medical opinions against service connection to be inadequate and not probative, and the Veteran failed to report to additionally scheduled examinations that may have provided evidence to substantiate his claim. As such, the record contains no competent evidence attributing the Veteran’s current hearing loss to his military service. The Veteran has stated he believes his hearing loss disability is related to an in-service noise exposure injury; however, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, requiring knowledge that is outside his competence in this case, as the record does not show he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Based on these facts, the Board finds the preponderance of the evidence weighs against finding the Veteran’s current bilateral hearing loss disability is the result of noise exposure during service on either a presumptive or direct basis. Therefore, the benefit-of-the-doubt doctrine does not apply, and service connection for the Veteran’s bilateral hearing loss is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Pitman, Associate 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.