Citation Nr: 20037565 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 14-38 844A DATE: June 2, 2020 ORDER Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for a neck disability is remanded. FINDING OF FACT The evidence is at least evenly balanced as to whether bilateral hearing loss was caused by service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. § § 1110, 5107; 38 C.F.R. § § 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1957 to June 1959. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In April 2018, the Board remanded this matter for further development. The case has since returned for adjudication. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends his bilateral hearing loss is etiologically related to his service. Establishing service connection generally requires medical or, in certain circumstances, lay 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 present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir.1996) (table). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Where a veteran served continuously for ninety days or more during a period of war or during peacetime service after December 31, 1946, and a chronic disease, such as sensorineural hearing loss, becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service. 38 U.S.C. § 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309. The disease need not be diagnosed within a presumptive period, it must be shown by acceptable medical or lay evidence that there were characteristics manifestations of the disease to the required degree during that time. Id. Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303 (b). The second and third elements outlined above may be established by showing continuity of symptomatology for certain specified diseases. Continuity of symptomatology may be shown by demonstrating “(1) that a chronic disease 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.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316 ; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the 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, or 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. In Hensley, the Court explained that the threshold for normal hearing is from zero to 20 decibels and that higher threshold levels indicate some degree of hearing loss. See 5 Vet. App. at 157. Prior to November 1, 1967, service department audiometric test 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). To facilitate the data comparison in this decision, for service department audiometric test results through October 31, 1967, the ASA standards have been converted to ISO standards. Turing to the evidence, in the Veteran’s June 1957 entrance examination, the Veteran’s puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) - - LEFT 0 (15) 0 (10) 0 (10) - - In the Veteran’s June 1959 separation examination, the Veteran’s puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 5 (15) 5 (15) 10 (20) - LEFT 5 (20) 5 (15) 10 (20) 10 (20) - The Veteran’s service treatment records also note that the Veteran had an upper respiratory infection in January 1958. The Veteran’s private treatment records first diagnosed the Veteran with bilateral hearing loss in July 1998. In April 1999, private treatment records indicate that the Veteran had gradual hearing loss that appeared to begin ten years prior. The treatment records indicated a history of noise exposure in service. A private treatment letter dated June 2003, from the Veteran’s audiologist, stated that the Veteran reported decreased hearing over the ast 15 years. The audiologist noted there was a history or occupational noise exposure, familial hearing loss, and chronic ear disease. In April 2013, the Veteran underwent a VA audiological examination. The Veteran’s puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 50 55 55 60 LEFT 40 60 60 65 70 The Veteran’s speech discrimination score was 84 percent in the right ear and 80 percent in the left. The examiner opined that the Veterans hearing loss is less likely than not caused by or a result of an event in the military. The examiner reasoned that considering normal re-test variability, no significant threshold was present between entrance and separations examinations. The Veteran’s calibrated audiometrics for enlistment and separation indicating hearing to be within normal limits. The examiner noted that although the Veteran currently had high frequency sensorineural hearing loss, IOM concluded that based on current knowledge of cochlear physiology there was no sufficient scientific basis for the existence of delayed-onset hearing loss. Based on current knowledge of acoustic trauma and instantaneous or raid development of noise-induce hearing loss there was no reasonable basis for delayed-onset hearing loss. In September 2019, VA obtained an addendum audiological opinion. The examiner opined that the Veteran’s hearing loss is less likely than not a result of hazardous noise exposure during active duty. The examiner reasoned the Veteran does not have a precipitous hearing loss which is seen in exposure to hazardous noise. In addition, there are not human studies available which provide the clinical correlation necessary to draw conclusions and medical opinions beyond speculation regarding delayed onset hearing loss at this time. The Kujawa study, was a study of mice tested at frequencies above the traditional audiometric test battery. Conclusions drawn by the researches indicated a need for further study in the area, which is insufficient for drawing clinical correlations. There is not yet a direct nexus that can be drawn from mice tested at supra-frequencies and human subjects tested at traditional frequencies, including VA accepted adjudication frequencies. The examiner noted that studies which suggest delayed onset hearing loss in animal subjects are not considered to be clinically predicative because there are a cohort of veterans exposed to hazardous noise levels who do not incur hearing loss immediately or later in life. The examiner stated that this Veteran’s exposure to hazardous noise is not presumptive evidence to grant service connection. The examiner stated that if exposure to hazardous noise was all that was needed to grant a veteran service connection then all veterans would require it. The examiner concluded that the rationale in in favor of the claim is speculative to suggest that exposure is greater evidence than the diagnostic measures themselves. The Board finds that the April 2013 with the accompanying September 2019 addendum medical opinion are not adequate for adjudication. The Board observes that the United States Court of Appeals for Veterans Claims (Court) has directed attention to an additional section of the report. The Court found that while the report states that “based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely” that the onset of hearing loss begins years after noise exposure occurs (IOM report at 47), this statement does not reflect the full extent of the report’s findings pertinent to the matter. The Court provided that while a portion of the IOM report found there is no evidence of delayed onset hearing loss due to noise exposure, another portion of the same IOM report found that “an individual’s awareness of the effects of noise on hearing may be delayed considerably after the noise exposure.” (IOM report at 203-04.) The Court has directed attention to the fact that the IOM report’s language may support a theory of service connection involving delayed onset of a Veteran’s perception of hearing loss such that a VA examiner’s citation of the report should contemplate to all of the pertinent aspects of its findings. See, e.g., Lemmons v. McDonald, No. 15-3043, 2016 LEXIS 1646 (Vet. App. October 28, 2016) (non-precedential); Bethea v. Derwinski, 2 Vet. App. 252 (1992) (single-judge memorandum decisions may be cited or relied upon for any persuasiveness or reasoning they contain). The April 2013 reliance on the IOM report is not necessarily an adequate rationale for a negative opinion. Further, the December 2019 addendum opinion reasoned that the Kuwaja study, citied by the Veteran’s representative, was flawed due to use of animals versus humans, and stated that the human study must hold more weight in determining a medical opinion. The IOM study appears to provide some conflicting findings concerning delayed onset hearing loss due to acoustic trauma and therefore, alone, cannot be relied on to support a negative nexus opinion. As these opinions are not adequate, they are not probative. In July 2019, a private audiologist provided a positive nexus medical opinion. The private audiologist stated that the Veteran’s bilateral hearing loss was most likely caused by or a result of jet engine noise exposure, aerotitis, and exposure to sonic booms. The examiner reasoned that the Veteran spent two years in housing a quarter of a mile from an Air Force base runway, the Veteran developed aerotitis with middle ear bleeding twice after flying in a T-33 with upper respiratory infection; and the exposure to sonic booms from two low flying planes. The private audiologist stated these factors were most likely the cause of the Veteran’s hearing loss, which were first noted within one year of discharge. As for the lay evidence of record, in August 2006, the Veteran stated that while in service, he consulted a flight surgeon for two episodes of aerotitis during 1957 or 1958. The Veteran further stated that he lived at the end of a runway at an Air Force base and was subjected to intense jet engine noise when jet fighters took off. In April 2014, the Veteran stated that he first noticed symptoms of hearing loss shortly after discharge from service. The Veteran stated the primary cause of the Veteran’s hearing loss was prolonged exposure to loud noise as well as brief exposure to sonic booms caused by low flying jets. The Veteran estimated that the level of intensity of noise he was exposed to in-service was at 100 to 110 decibels. Initially, the Board acknowledges that the Veteran is a retired medical doctor. The Board notes that the Veteran is competent to state as to his perceived symptoms, such as his complaints of hearing loss. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Typically, a Veteran is not competent to provide a diagnosis of complex medical condition, however, the Veteran is a medical doctor; accordingly, his opinions will be afforded the weight of a medical professional. However, the Board does not find that the Veteran’s statement that his hearing loss began shortly after separation from service is credible. Notably, the Veteran’s reports to his private audiologist indicates that his hearing loss began 15 years prior to his treatment for hearing loss, or around 1990. As the Veteran’s own reports as to when his hearing loss began are inconsistent, they are not credible. Further, the Veteran’s etiological opinion concerning his hearing loss provides limited probative value and it is unclear as to his expertise in determining the etiology of hearing loss. See, e.g., Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.”); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (noting that interest in the outcome of the proceedings “may affect the credibility of testimony”). Nevertheless, the Board finds that the evidence is at least in equipoise that the Veteran’s currently diagnosed hearing loss is etiologically related to his in-service noise exposure. The July 2019 private medical opinion along with the Veteran’s somewhat probative medical opinion outweighs the negative VA inadequate medical opinions. Therefore, the Board finds that service connection must be granted. REASONS FOR REMAND 2. Entitlement to service connection for a neck disability is remanded. The Veteran contends that his current neck disability is etiologically related to his service. Specifically, the Veteran contends he injured his neck by diving into a shallow pool in service. The Veteran underwent a VA examination October 2019. The examiner diagnosed the Veteran with degenerative arthritis of the cervical spine. The examiner opined that the Veteran’s neck disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran’s service treatment records were silent for any neck injuries problems or complaints. The Veteran’s separation medical examination dated in June 1959 document a normal spine. The Veteran’s subsequent private medical records from 1983, 1988, 2000, 2001, 2002, and 2005 were silent for any neck problems or complaints. The Veteran’s VA treatment records, available since 2009 were silent for any neck complaints until 2018. The Veteran’s x-rays of the cervical spine reveal no prior bony injury (such as compression fracture) documenting only degenerative changes throughout the entire visualized portion of the spine. The examiner found the Veteran’s degenerative disc disease is a result of water loss and age-related wear and tear. The Board finds that October 2019 VA opinion is not adequate for adjudication. The October 2019 VA examiner failed to address critical medical evidence in the record. Specifically, the Board notes that in March 1962, the Veteran’s private provider submitted a diagnosis sheet to VA. The private examiner noted that the Veteran was diagnosed in May 1960 with herniated nucleus pulposus of the C-7. The October 2019 VA examiner’s reasoning relied on no evidence of any neck complaints in the medical record until 2018, however the examiner failed to address the May 1960 diagnosis concerning the Veteran’s C-7 spine. Therefore, an addendum medical opinion is required to address the March 1962 diagnosis letter from the Veteran’s private physician. Finally, the Board notes that the April 2018 Board remand directed a VA examiner to address the Veteran’s (a retired medical doctor) competent medical opinion that his neck disability is at least as likely as not related to his reported in-service injury. The October 2019 VA examiner failed to address the opinion. Therefore, upon remand the examiner must address the Veteran’s, who is a medical doctor, opinion. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s degenerative arthritis of the cervical spine. The examiner must opine as to the following: (a.) Whether the Veteran’s neck disability is at least as likely as not related to an in-service injury, event, or disease, to include diving into a shallow pool. i. The examiner must address the Veteran’s competent medical opinion that his neck disability is related to his service. ii. The examiner must address the March 1962 statement from the Veteran’s doctor that stated he had a diagnosis of herniated nucleus pulposus of the C-7 in May 1960. (b.) Whether the Veteran’s neck disability at least as likely as not manifested within one year after discharge from service or was noted during service with continuity of the same symptomatology since service. i. The examiner must address the March 1962 statement from the Veteran’s doctor that stated he had a diagnosis of herniated nucleus pulposus of the C-7 in May 1960. (c.) The examiner must provide a complete rationale for all opinions provided. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten 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.