Citation Nr: 20043748 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 18-52 765 DATE: June 29, 2020 ORDER Service connection for right ear hearing loss is denied. REMANDED Entitlement to service connection for diabetes, to include as due to herbicide agent exposure, is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s right ear hearing loss onset during service, was caused by his service, manifested to a degree of 10 percent or more within one year of leaving active duty, or was noted in service with a continuity of related symptomatology after discharge. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from January 1957 November 1959 and November 1961 to August 1962. This matter is before the Board of Veterans’ Appeals (Board) on appeal from September 2015 and July 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Board remanded the Veteran’s appeal to the RO for further evidentiary development. Entitlement to service connection for right ear hearing loss The Veteran contends that his right ear hearing loss warrants service connection. The Veteran’s DD-214 states that his military operational specialty was as a Switchboard Operator. The Department of Defense’s Duty MOS Noise Exposure Listing indicates that the equivalent of that specialty has a “moderate” likelihood of hazardous noise exposure. Service treatment records reflect that the Veteran underwent Whispered Voice hearing tests in January 1957 and again in October 1959. The results in both cases were normal. The Veteran underwent a hearing examination in November 1961. Speech recognition was not tested. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 (30) 15 (25) 15 (25) n/a 15 (20)   Prior to January 1967, it was common to use the ASA standard in military audiograms. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 500 1000 2000 3000 4000 add 15 10 10 10 5 The figures converted to ISO-ANSI are shown in parentheses in the audiogram above. The Veteran also underwent an audiogram in June 1962. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 0 (10) -5 (5) 0 (10) 0 (5) Speech audiometry was not tested. The figures converted to ISO-ANSI are again shown in parentheses in the audiogram above. VA treatment records report that the Veteran was using a hearing aid for the right ear at least as early as March 2011.   The Veteran was afforded a VA examination for hearing loss in September 2015. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 60 60 70 75 Speech audiometry revealed speech recognition ability of 66 percent in the right ear. The examiner diagnosed sensorineural hearing loss in the frequency range of 500 to 4000Hz. The examiner found that there was no positive threshold shift in service and concluded that the hearing loss was less likely than not caused by military service because the Veteran had normal hearing sensitivity at separation from service. The Veteran reported exposure to loud noises in service, including a battery exploding on the floorboard of a truck. The Veteran also reported civilian noise exposure including noise from construction, farming, a steel mill, and hunting. In an October 2015 Notice of Disagreement, the Veteran stated that his hearing loss is more severe in his right ear than in his left. In a May 2018 Statement in Support of Claim, the Veteran said that his right ear hearing loss is more severe than the loss in his left ear, and that he continues to experience hearing loss of the right ear. The Veteran also said that he was exposed to military acoustic trauma and hazardous noise.   The Veteran underwent a private audiological testing in June 2018. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 60 60 n/a 75 The private audiologist stated that military noise contributed to the Veteran’s hearing loss but provided no rationale or explanation for that conclusion. The Veteran was afforded a VA examination for hearing loss in June 2018. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 65 60 65 75 75 Speech audiometry revealed speech recognition ability of 78 percent in the right ear. The Veteran reported military hazardous noise exposure to tanks with some hearing protection. He also reported occupational noise exposure (farmer and garbage truck) without hearing protection. The examiner concluded that it was less likely than not that the Veteran’s right ear hearing loss was caused by military noise exposure because there were no significant threshold shifts when comparing audiograms from November 1961 and June 1962. The examiner also noted that the Veteran’s hearing was normal on exit from service. The Veteran was provided with another VA examination for hearing loss in January 2020. Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 60 70 80 85 Speech audiometry revealed speech recognition ability of 94 percent in the right ear. The Veteran stated that he had no noise exposure before or after military service. The examiner noted that the Veteran had normal whisper test when he entered service in 1957, but that this type of testing does not provide frequency-specific information. He noted the Veteran had normal hearing sensitivity in the right ear and that there was a 15 decibel threshold shift in the right ear from 1961 to 1962. He noted his moderate probability of noise exposure in service and opined that it was at least as likely as not that his right ear hearing loss was a result of hazardous noise exposure. Applying the criteria for direct service connection under Shedden, the Board finds that the Veteran presently has a right ear hearing loss disability for VA purposes. Shedden, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). VA regulations provide that a hearing impairment is 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. 38 C.F.R. § 3.385. Each of the four audiology evaluations beginning in 2015 show that the Veteran’s hearing was impaired to levels that meet these criteria in the right ear, and therefore the Veteran currently has right ear hearing loss for VA purposes. Concerning the second element of direct service connection, an in-service injury or event, the Veteran contends that he was exposed to hazardous noise while in service. According to the Veteran's DD-214, his military occupational specialty (MOS) was Switchboard Operator, and there is a moderate probability of hazardous noise exposure for that MOS. Letters from the Veteran attest to his exposure to hazardous noise and these statements are competent and credible regarding the nature of the Veteran’s in-service noise exposure. Thus, the Board finds that the Veteran was exposed to hazardous noise during his service and the second element of direct service connection is satisfied. Shedden, 381 F.3d at 1166-67. Turning to the third element of direct service connection, whether the hazardous noise exposure caused the current right ear hearing loss disability, the Veteran has contended that his hearing impairment is a direct result of his exposure to hazardous noise in service. The Board has considered the Veteran’s statements; as a layperson, he is competent to testify regarding observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, the probable etiology of a disorder such as hearing impairment falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Veteran has not demonstrated or alleged expertise in determining a medical nexus, and he does not offer any supporting medical evidence. Therefore, his opinion in this matter has no probative value. As described above, the record contains four medical opinions concerning the etiology of the Veteran’s right ear hearing loss. The Board finds that the June 2018 private audiologist’s opinion is not adequate for evaluation purposes and thus not entitled to any weight of probative value because it did not explain or provide a rationale for its conclusion. Additionally, the Board finds that the January 2020 VA opinion that found it was at least as likely as not that the Veteran’s right ear hearing loss was due to his in-service noise exposure was based on inaccurate factual premises and is also entitled to no weight of probative value. Specifically, the examiner indicated that there was a 15-decibel threshold shift between the 1961 and 1962 audiograms that was supportive of hearing loss. The audiograms do reflect a shift at the 4000 Hz level. Specifically, in 1961 his hearing at 4000 Hz was at 15 (20) decibels, but in 1962 it was at 0 (5) decibels; however, if anything, this shift reflects improved hearing at separation, not worse hearing, as the findings reflected better hearing. The other Hertz levels did not reflect any threshold shifts from 1961 to 1962. Therefore, the examiner’s conclusion that there was a threshold shift that supported hearing loss being related to military service is misplaced. Further, the examiner indicated that the Veteran did not have any post-service noise exposure; however, the September 2015 and June 2018 VA examinations reflect that the Veteran reported having multiple sources of post-service noise exposure. Thus, this conclusion is also based on an inaccurate factual premise. As such, the Board finds that the January 2020 opinion is entitled to no weight of probative value. The two probative medical opinions were issued by the VA in October 2015 and June 2018. The October 2015 VA opinion stated that the Veteran’s right ear hearing loss was less likely than not caused by his service. The examiner explained that the Veteran’s hearing was normal at separation and there was no positive threshold shift in service. The examiner noted the Veteran’s noise exposure in service and also noted that the Veteran had some hazardous noise exposure after service which could be responsible for the hearing loss. This opinion is entitled to substantial weight of probative value as it reflects consideration of the evidence of record, including the Veteran's post-service noise exposure. The June 2018 VA medical opinion also concluded that the Veteran’s right ear hearing loss was less likely than not caused by his military service. Similarly to the October 2015 VA opinion, the examiner explained that the normal hearing in November 1961 and June 1962 tests and lack of significant threshold shifts made it unlikely that the Veteran’s current hearing loss was caused by in-service noise exposure. The June 2018 examiner also pointed out the post-service occupational noise exposure as a possible cause. The Board finds this opinion also to be entitled to substantial weight of probative value as it is shown to have been based on a review of the Veteran’s record and an examination of the Veteran’s current hearing pattern. Therefore, the competent medical evidence is against a finding that the Veteran’s right ear hearing loss was caused by in-service exposure to hazardous noise. The preponderance of evidence is also against a finding that sensorineural right ear hearing loss manifested to a compensable degree within one year of service separation to establish presumptive service connection as a chronic disease under 38 C.F.R. §§ 3.307, 3.309(a). The June 1962 separation audiogram does not show that right ear hearing loss manifested in service or to a compensable degree within one year of separation. The earliest evidence of record of a right ear hearing loss disability is a VA treatment record indicating that the Veteran was using a hearing aid for the right ear in March 2011, about forty-nine years after separation from service. The Veteran's service treatment records show no complaint, symptoms, diagnosis, or treatment for right ear hearing loss while in service. There was no report of right ear hearing loss until March 2011. The preponderance of the evidence is against a finding that the Veteran’s hearing loss had its onset within one year of leaving the service to qualify for the chronic disease presumption. It is also against a finding that hearing loss was noted in service with symptomatology of right ear hearing loss continuously since leaving service. The preponderance of the evidence of record is against finding that the Veteran’s right ear hearing loss had its clinical onset in active service or is otherwise related to his period of active service, to include any noise exposure therein. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim for service connection for right ear hearing loss, that doctrine is not applicable, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App., 49, 53-56 (1990).   REASONS FOR REMAND Entitlement to service connection for diabetes, to include as due to herbicide agent exposure, is remanded. Concerning the claim for service connection for diabetes, the Board finds that there has not been substantial compliance with the February 2019 remand directives. In the remand directives, the RO was directed to: (1) contact the Veteran and ask him to clarify, if possible, the timeframe when he saw herbicide agents being sprayed; and (2) contact the Joint Services Records Research Center (JSRRC) or other appropriate entity and request verification of the Veteran’s claimed herbicide agent exposure in Korea during the time period indicated by the Veteran, or, if the Veteran did not respond, from February 1957 to November 1959, when the Veteran’s service records reflect that he was stationed in Korea. The RO was directed to make separate requests for each 60-day period, and to make as many requests as are necessary to obtain the requested records. The Veteran replied in October and December 2019. His December reply indicated that he saw the spraying of the herbicide agents between May and December 1958. In December 2019, the Agency of Original Jurisdiction (AOJ) issued a formal finding that VA lacked the information that the JSRRC requires in order to verify herbicide agent exposure in Korea. In the formal finding, the AOJ stated that the Veteran responded to their request for information in October and indicated that he was in Korea in 1958. However, the AOJ did not note the December 2019 statement that the Veteran saw herbicide agents being sprayed from May to December 1958, and this statement may not have been of record at the time of the December 2019 formal finding. The AOJ did not request verification of the Veteran’s claimed herbicide agent exposure from the JSRRC or any other appropriate entity as instructed by the Board’s February 2019 remand.   A previous remand confers on the claimant, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, remand is necessary in order to ensure substantial compliance with the Board’s prior remand directives. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from April 2020 to the present. 2. Contact the JSRRC or other appropriate entity and request verification of the Veteran’s claimed herbicide agent exposure in Korea from May to December 1958. (a.) Separate requests must be made to JSRRC for each 60-day period during the appropriate time frame. A copy of the request(s) to the JSRRC and the responses for each 60-day period covered should be included in the claims file. (b.) As required under 38 C.F.R. § 3.159(c)(2), as many requests as are necessary to obtain the requested records must be made, and such efforts may be ended only if the conclusion is reached that the records sought do not exist or that further efforts to obtain such records would be futile. If   such a conclusion is reached or the search for such records has negative results, documentation to that effect should be included in the claim file. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Dean 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.