Citation Nr: 20021574 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 18-05 496 DATE: March 26, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the probative evidence is against finding that bilateral hearing loss began during active service or is otherwise 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, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1970 to April 1972.   This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of a U.S. Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois. It was previously before the Board. In July 2019, the Board remanded the issue to the RO for a new VA medical opinion that considered additional medical literature and arguments. The RO substantially complied with July 2019 remand order. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for bilateral hearing loss is denied. The Veteran contends that the December 2019 VA medical opinion is inadequate because (1) it did not explicitly consider the Veteran’s medical history of active-duty hazardous noise exposure and (2) did not benefit from consideration of January 2015 medical literature that supports that bilateral hearing loss from noise exposure can be asymmetric. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, such as hearing loss, will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of bilateral hearing loss, and evidence shows that in-service hazardous noise exposure occurred, the preponderance of the probative evidence weighs against finding that the bilateral hearing loss began during service or is otherwise related to an in-service injury, event, or disease. The Veteran’s military personnel and service treatment records did not reflect any hearing loss for VA purposes during active service. Audiometer results from the August 1970 induction examination documented greater hearing loss than does the January 1972 separation examination. At his August 1970 examination, the Veteran did report a medical history of earaches, but no hearing loss. Table 1: August 5, 1970 Report of Medical Examination (for induction). HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 10 10 LEFT 25 15 15 10 Table 2: January 11, 1972 Report of Medical Examination (for separation). HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 0 LEFT 0 0 0 0 Medical interpretation of the in-service audiometric test results indicates no hearing loss. The October 2014 VA examiner opined that the Veteran had “normal symmetric hearing at both enlistment and separation, and no significant change occurred during that time” (see below). The December 2019 VA examiner opined that the “thresholds measured while in service are within normal measurement variability” and concluded that the Veteran “did not have hearing injury while in service.” (see below). There is no competent evidence of the presence of hearing loss to a compensable degree within one year of discharge. 38 C.F.R. §§ 3.307, 3.309. Private treatment records show the Veteran was not diagnosed with abnormal hearing until March 2010, more than 35 years after his separation from service. To the extent that the Veteran alleges the presence of hearing loss for VA purposes within one year of discharge, this allegation is without probative value. While the Veteran is competent to report having experienced symptoms of hearing loss since service, he is not competent to quantify the extent of hearing loss. The determination of whether hearing loss for VA purposes is present requires the interpretation of specialized audiological test results. The Veteran is a lay person without access to the specialized testing and does not have the requisite training to interpret the test results. Service connection is not warranted for hearing loss on a presumptive basis. To the extent that the Veteran has alleged he had had hearing loss during active duty, the Board finds the contemporaneous evidence of record is more probative regarding that issue. Medical interpretation of the audiometric testing conducted at discharge does not document the presence of hearing loss. The Veteran completed a report of medical history at the time he underwent he entrance examination in August 1970. At that time, he denied having or ever having had hearing loss. In January 1972, the Veteran indicated that there had been no change in his health since entering service. The Veteran's own self-report of history weighs against a finding that he had hearing loss during active duty. The service connection claim was not submitted until 2013 or more than 40 years after discharge. The Board finds that, if the Veteran had had hearing loss which had been present since active duty, he would have submitted a claim sooner. The Board places greater probative weight on the contemporaneous evidence of record. Not only may the Veteran's memory have dimmed with time but the chance for pecuniary gain may have influenced the more recent statements. Service connection is not warranted for bilateral hearing loss on a direct basis. There is no competent probative evidence which links the Veteran's current hearing loss to his active duty service. The only evidence which provides such a link is the Veteran's own allegations. The Veteran believes his bilateral hearing loss is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that 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). There is competent probative evidence of record which indicates that the hearing loss is not linked to active duty. In a report of a VA examination dated in October 2014 and a December 2019 clarifying addendum opinion, it was determined that the Veteran’s bilateral hearing loss is not at least as likely as not related to an in-service injury, event, or disease, including his hazardous noise exposure. In October 2014, the VA examiner explained as rationale that: The veteran had normal symmetric hearing at both enlistment and separation, and no significant change occurred during that time. Based on his separation evaluation, he reported “my health has not changed since entering service.” Based on veteran report, it was alluded to that the first time he sought audiologic/otologic treatment was in 2010 while in Arizona (non‐VA), nearly 40 years following service. According to the consensus report from the Institute of Medicine, titled “Noise and Military Service: Implications for Hearing Loss and Tinnitus” (2006), there is not sufficient evidence from longitudinal studies in laboratory animals or humans for concluding that permanent noise‐induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur. At his October 2014 VA examination, the Veteran reported hearing loss in both ears that caused “difficulty with everything in general, especially when others are speaking at once, during which times he feels that sounds are drowned out.” Objective audiological examination showed hearing loss for VA purposes in the Veteran’s left ear and the VA examiner diagnosed sensorineural hearing loss in both ears. With his January 2019 appeal to the Board, the Veteran sought to dispute the October 2014 VA examiner’s opinion, citing Hensley v. Brown, 5 Vet. App. 155, 160 (1993) (holding that the absence of hearing loss during service did not necessarily bar a service connection claim) and submitting additional medical literature that appeared to be at odds with the 2006 Institute of Medicine report. In December 2019, the VA examiner, pursuant to the Board’s July 2019 remand order to consider the medical literature and additional arguments, explained as rationale that: Electronic hearing testing conducted at enlistment and at discharge shows the veteran did not have a significant threshold shift beyond normal measurement variability while in service. Therefore the evidence of record shows the veteran did not have hearing injury while in service. In the judgment of the examining Audiologist thresholds measured while in service are within normal measurement variability. It is important to note no reference in this opinion was made to “normal hearing.” The examiner is familiar with the Hensely v Brown decision 1993. All available evidence is considered by the examining Audiologist when rendering an opinion on hearing loss. While many factors are involved, one critical issue for determining hearing loss/tinnitus related to noise exposure while in service is “did the veteran have a significant threshold shift beyond normal measurement variability/normal progression while in service?” Evidence in this case clearly and convincingly show the veteran did not have a significant threshold shift beyond normal measurement variability while in service. It is also important to know behavioral measurements always involve some degree of variability and that such differences do not constitute injuries. A determination of significant threshold shift beyond normal measurement variability caused by or a result of noise exposure while in service is made by the expert in area (Audiologist) on a case by case basis after a careful review of all evidence. The evidence in this case clearly and convincingly shows the veteran did not have hearing injury while in service. Therefore the evidence of record clearly and convincingly rebuts, if so stated, the veterans subjective report of hearing loss while in service. Therefore it is my opinion the veteran did not have hearing injury (injury to hearing sensitivity) while in service. Delayed onset hearing loss and tinnitus due to noise exposure are unlikely to occur. In the absence of an objectively verifiable noise injury, the association between claimed tinnitus and noise exposure cannot be assumed to exist. The examiner concedes noise exposure in service; however the evidence shows there was no noise injury while in service. This is not at all contradictory. Concerns about the noise hazards associated with military service and questions about the relationship between noise exposure and hearing loss or tinnitus led Congress to direct VA to contract with the National Academies for a study of these issues. The committee convened by the Institute of Medicine of the National Academies to conduct this study was charged with reviewing the following for the period from World War II to the present: (1) the available data on hearing loss that could be expected among members of the armed forces; (2) sources of hazardous noise exposure during military service; (3) the levels of noise exposure necessary to cause hearing loss or tinnitus; (4) the course of hearing loss following noise exposure, including whether onset can be delayed; (5) risk factors for noise-induced hearing loss and tinnitus; and (6) compliance by the military services with requirements for audiometric testing and the adequacy of the services' hearing conservation programs to protect the hearing of service members. The Institute of Medicine (IOM) clearly indicated in its landmark study of noise injury in military service it is difficult if not impossible to predict who will be noise exposed and if they are so exposed who will suffer noise injury. It is important to know not everyone who is exposed to hazardous noise will suffer noise injury, and that delayed onset hearing loss due to previous noise exposure is unlikely to occur. Therefore if the evidence shows there has been no significant threshold shift beyond normal measurement variability while in service (no hearing injury while in service) any hearing loss occurring following service is less likely as not caused by or a result of noise exposure while in service. Many factors can contribute to hearing loss and/or tinnitus following service such as recreational, occupational, environmental noise exposure, aging, disease, medications, environmental pollution, genetic/hereditary factors, smoking, etc... Audiograms provide objective evidence of noise injury.   In the absence of objective audiometric evidence of noise injury while in service, an affirmative opinion that the veteran suffered some latent undiagnosed noise injury is utter speculation and directly contradicts the objective evidence of record. The IOM 2006 study was commissioned by congress to, among other issues, address the question “is there delayed onset hearing loss due to previous hazardous noise exposure?” IOM reviewed numerous animal and human studies. After reviewing all studies IOM found “There 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. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur.” The delayed affect to which IOM was referring to was delayed hearing loss. More recent animal and human studies have been reviewed by this examiner (e.g. Kujawa and Liberman line of research). The authors (Kujawa and Liberman) specifically questioned the conclusions of the IOM report noting that the lack of delayed threshold shifts after noise exposure “has been taken as evidence that delayed effects of noise do not occur.” In fact, IOM stated “there was insufficient evidence 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. Although the definitive studies to address this issue have not been performed, based on anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur.” The delayed affect to which IOM was referring was delayed hearing loss. Therefore, the authors (Kujawa and Liberman) misquoted the IOM report. IOM did look at animal studies and discussed Mills et al. (1997) at length since it addressed hearing sensitivity in exposed and non-exposed animals, and found no difference over time. VA Audiologists conducting Audiology C&P exams in the VA are aware of and continue to review human and animal studies regarding delayed onset hearing loss (such as Dr. Kujawa's line of research since 2006). We have reviewed the Kujawa and others line of research many times with much discussion. The conclusion after extensive consideration is that these studies, while important and elegant, do not overturn the conclusions of the IOM. The premise that delayed hearing loss occurs even with apparent recovery of hearing thresholds simply misstates the legal basis for disability and the conclusions of the Kujawa articles. These papers did not state that animals suffered delayed-onset hearing loss. In fact, hearing thresholds returned to normal. Hearing loss, once it has occurred, may progress due to a variety of factors including “socioacusis” (the din of an industrial society), age, medications, diet, etc., but there is no evidence that there are delayed threshold changes following a short period of time after exposure. If there is a permanent threshold noise-induced hearing loss, threshold loss may progress for various reasons. On the other hand, there is no compelling evidence that progression of hearing loss directly attributed to the original exposure occurs when there is no permanent hearing loss at the time of exposure. The Board finds the rationales supporting the negative etiology opinions for the VA examinations to be sufficient. Together, they address in detail the pertinent medical findings and also, the research into hearing loss. Applying the Veteran's history to the research, the examiners found that current hearing loss is not due to conceded military noise exposure. The Board finds the examiner’s opinions are probative, as they are based on an accurate medical history and provided an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A review of the Veteran’s military personnel and service treatment records, for example, did show that his military occupational specialty was as a “cannoneer,” indicating likely hazardous noise exposure, but objective hearing tests showed no hearing loss at his January 1972 separation hearing examination when compared to his August 1970 induction examination. Regarding the Veteran’s contention that the December 2019 VA examiner did not explicitly consider the Veteran’s medical history of active-duty hazardous noise exposure, the VA examiner conceded noise exposure in service. The fact was taken into account when rendering the etiology opinion. Regarding the Veteran’s contention that the December 2019 VA examiner did not benefit from consideration of January 2015 medical literature that supports that bilateral hearing loss from noise exposure can be asymmetric, as can be seen above, this was not part of the VA examiner’s rationale for its opinion. The VA examiner focused instead on lack of hearing loss during service and that delayed onset hearing loss from active service was unlikely, not the assymetry of his current hearing loss. The Board finds that the preponderance of the competent probative evidence is against the claim for service connection for bilateral hearing loss. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (U.S. 1990). The claim is denied. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James Hekel, 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.