Citation Nr: 20037570 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 18-35 638 DATE: June 2, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s bilateral hearing loss had its onset in or is otherwise etiologically related to his period of active service, to include in-service hazardous noise exposure. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from April 1961 to March 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in October 2018 when it was remanded for additional development. It has returned for adjudication. Entitlement to service connection for bilateral hearing loss The Veteran contends that his current hearing loss is related to in-service hazardous noise exposure as a pilot in the Air Force. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, such as organic diseases of the nervous system (including sensorineural hearing loss), are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown if “the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology.” Savage v. Gober, 10 Vet. App. 488, 498 (1997). 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. Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that 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; 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. It is noted that the absence of in-service evidence of hearing loss disability is not fatal to a claim for service connection for hearing loss disability. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such 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 (1993). The Court has established that the threshold for normal is from 0 to 20 decibels. Id. As an initial matter, the Board notes that a hearing loss disability as defined at 38 C.F.R. § 3.385 is shown on the February 2018 VA audiological examination report. Additionally, the Veteran’s military occupational specialty of pilot carries a high probability of hazardous noise exposure. Accordingly, the requirements of Shedden elements (1) and (2) have been satisfied. However, the Board concludes that the preponderance of the evidence is against finding that the Veteran’s current hearing loss disability had its onset during his period of active service; or manifested to a compensable degree within one year after discharge; or is otherwise etiologically related to his period of active service, to include his conceded noise exposure therein. The Veteran’s service treatment records include various in-service audiometric readings. Notably, prior to November 1967, audiometric 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)-American National Standards Institute (ANSI). Thus, all audiometric testing results provided in the Veteran’s service treatment records are assumed to reflect ASA standards and have been converted as shown in the adjoining parentheses below. On entrance examination in April 1961, audiometric testing revealed the following pure tone thresholds, in decibels (dB): HERTZ 500 1000 2000 3000 4000 RIGHT -10 (5) dB -10 (0) dB -10 (0) dB -- -5 (0) dB LEFT -10 (5) dB -10 (0) dB -10 (0) dB -- -10 (-5) dB On annual examination in March 1962, audiometric testing revealed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) dB -10 (0) dB -10 (0) dB -10 (0) dB -5 (0) dB LEFT -10 (5) dB -10 (0) dB -10 (0) dB -10 (0) dB -5 (0) dB On annual examination in July 1962, audiometric testing revealed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT -5 (10) dB -5 (5) dB -10 (0) dB -- -10 (-5) dB LEFT -10 (5) dB -5 (5) dB -5 (5) dB -- -10 (-5) dB On annual examination in June 1964, audiometric testing revealed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT -10 (5) dB -10 (0) dB 0 (10) dB -5 (5) dB 0 (5) dB LEFT -10 (5) dB -10 (0) dB -10 (0) dB 0 (10) dB -5 (0) dB On annual examination in April 1965, audiometric testing revealed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT -5 (10) dB -10 (0) dB -10 (0) dB -5 (5) dB -5 (0) dB LEFT -10 (5) dB -10 (0) dB -10 (0) dB 0 (10) dB -5 (0) dB On annual examination in July 1965, audiometric testing revealed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT -5 (10) dB -5 (5) dB -5 (5) dB -- 0 (5) dB LEFT -5 (10) dB -5 (5) dB -5 (5) dB -- 0 (5) dB On annual examination in July 1966, audiometric testing revealed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) dB 0 (10) dB -10 (0) dB 0 (10) dB 0 (5) dB LEFT 0 (15) dB 0 (10) dB -10 (0) dB 0 (10) dB 0 (5) dB On separation examination in November 1966, audiometric testing revealed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) dB 0 (10) dB -10 (0) dB 0 (10) dB 0 (5) dB LEFT 0 (15) dB 0 (10) dB -10 (0) dB 0 (10) dB 0 (5) dB The first evidence of post-service treatment for hearing loss is dated in February 2018, when the Veteran sought hearing aids. A VA medical opinion was obtained in July 2019 regarding the nature and etiology of the Veteran’s bilateral hearing loss. After a review of the Veteran’s claims file, to include his service and post-service treatment records, the examiner opined that the Veteran’s bilateral sensorineural hearing loss was less likely than not incurred in or caused by the Veteran’s period of active service. The rationale was that the Veteran did not have any significant threshold shifts during military service, defining “significant shift” as a shift of at least 15 decibels at any one frequency. The examiner indicated that the Veteran’s 5-to-10-decibel shifts are considered normal fluctuation from one test to another, called “normal test retest reliability”. This fluctuation accounts for the environment where the test is completed, to include what type of headphone is utilized, the clinician/technician performing the test, and the patient’s motivation. As such, a 10 decibel change in hearing is not considered evidence of worsening of hearing. The examiner further noted that a study by the Institute of Medicine found no scientific basis for the concept that hearing loss that develops many years after exposure is causally related to that exposure. As such, the examiner found no scientifically plausible evidence of exposure to injury in service that would adversely affect the auditory system and result in post-service test results meeting the VA requirements under 38 C.F.R. § 3.385. The Board has considered that the Veteran is competent to report noise exposure during his active service. However, he is not competent to retrospectively diagnose himself with in-service hearing loss, and he is not competent to link any current hearing loss first documented decades after his military service to in-service disease or injury, including noise exposure. This issue is medically complex and requires specialized knowledge of the anatomy of the ear, its mechanisms for hearing, and disease processes (including the effect of acoustic injury). Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The etiology of delayed onset hearing loss is simply not susceptible to lay observation. The Veteran has also argued that his hearing loss began in the military. However, to the extent that the Veteran suggests that his hearing loss symptoms are contemporaneous with active service, the Board finds that this is not credible. Notably, the Veteran denied hearing loss on his separation report of medical history and there is no evidence of treatment for such until 2018, over 5 decades after service discharge. Therefore, the Board finds that the Veteran’s statements have no probative value. Alternatively, the Board assigns great probative value to the service treatment records, which demonstrate normal clinical evaluations, and the negative July 2019 VA medical opinion. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue). The VA medical opinion was prepared by an audiologist after examination of the Veteran and review of relevant medical records. Further, it is supported by a complete rationale. See Prejean v. West, 13 Vet. App. 444, 448 49 (2000) (noting that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Nieves Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran has not provided a favorable medical opinion to the contrary. After a review of the above, the Board finds that service connection for bilateral hearing loss is not warranted and the claim must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 53. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Connor, 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.