Citation Nr: 20052994 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 14-24 907 DATE: August 10, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence of record is against a finding that bilateral hearing loss had onset in active service or is otherwise causally connected to active service. CONCLUSION OF LAW The criteria for entitlement to service connection for hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a), 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1970 to June 1972 with service in Vietnam. In addition to a Vietnam Service Medal he received a Vietnam Campaign Medal with a “60” device, indicating service under combat conditions. Service connection for bilateral hearing loss Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In relevant part, 38 U.S.C. § 1154 (a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); see also 38 C.F.R. § 3.102. Certain organic diseases of the nervous system are presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). VA deems sensorineural hearing loss (SNHL) as among the organic diseases of the nervous system that are covered. See VA Under Secretary for Health Memorandum (October 1995); see also Fountain v. McDonald, 27 Vet. App. 258, 264, 271 (2015). 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, 4000 Hertz (Hz) is 40 decibels (db) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 db or greater; or, when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. VA regulations do not preclude service connection for a hearing loss that first met VA’s definition of disability after service, provided the evidence of record shows the required nexus with active service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993); see also 38 C.F.R. § 3.303 (d). The Veteran asserts that his currently diagnosed hearing loss is due to his in-service noise exposure. At his hearing held in January 2017 he described exposure to noise while serving as a radio operator, with exposure to noise from mortars and rockets as well as small arms fire. In support of his claim he submitted a lay statement from his wife in March 2017 where she indicated that she noted him to have hearing problems from the time they met. At his hearing he indicated he was married to wife for 24 years. In adjudicating the claim, the VA concedes noise exposure as consistent with his service in Vietnam under combat conditions. Service treatment records showed that on entrance examination and report of medical history of September 1970 the Veteran denied a history of hearing loss and his ears; the eardrums were normal. The audiogram revealed no pure tone threshold above -5 dB at any of the applicable frequencies. He had no issues with his ears or evidence of hearing loss shown in service. His June 1972 separation examination showed that his ears and eardrums were normal. The audiogram revealed no pure tone threshold above 20 dB at any of the applicable frequencies. The report of a March 2010 VA examination noted the Veteran to claim noise exposure to weapons fire in service. Since service, he endorsed no significant noise exposure with a history of having been a pipe fitter, truck driver, mobile home dealer, and real estate salesman. The audiological examination yielded the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 5 15 15 LEFT 5 10 0 10 35 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. The examiner summarized the findings for the right ear as clinically normal and the left ears as hearing loss not disabling per 38 C.F.R. § 3.385. The examiner opined that hearing loss was less likely as not a result of military acoustic trauma, noting that the Veteran had normal hearing on enlistment and separation examinations and pointing out that his threshold levels do not meet VA criteria for hearing loss disability. VA treatment records show hearing loss listed in the problem list on May 13, 2013, with an assessment of hearing loss both ears with planned hearing evaluation noted. Other VA records in November 2015 and March 2016 disclosed a review of systems that was negative for hearing loss, and other ear symptoms (tinnitus, pain or discharge, and vertigo). A March 28, 2017 letter from private family practice physician, L.A.G. MD, assessed unspecified bilateral hearing loss, deemed to probably be due to loud noise while in the Army. Subsequent VA records noted a history of hearing loss including a May 2017 neurology consult which noted this history with neurological examination noting that hearing loss was present but providing no discussion on etiology. This history and finding of hearing loss was again noted in October 2017. Later VA records from July, August and September 2019 noted hearing loss in the problem lists but review of systems was again showed no hearing loss or other ear issues. The report of an April 2019 VA examination, which included examination and review of the claims folder, noted that audiograms, obtained on 09/15/70, and 06/13/72, showed a bilateral normal hearing. The audiological examination yielded the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 40 45 50 LEFT 35 35 40 45 60 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 percent in the left ear. The examiner diagnosed sensorineural hearing loss (in the frequency range of 500-4000Hz) for the right ear and left ear. The examiner gave an opinion that the hearing loss of the right ear and left ear is at least as likely as not caused by or a result of an event in military service. Although this opinion is favorable, the rationale for this opinion was problematic as the examiner stated that while the entrance examination showed normal hearing, there was no audiogram at separation located in the claims file reviewed. The examiner noted that the Veteran reported a decrease in hearing during active duty and that noise exposure on active duty was conceded. The hearing loss noted on this examination was deemed consistent with noise induced hearing loss and was beyond the normal progression for age. The examiner stated that there is no evidence to confirm or deny a significant shift in hearing thresholds or auditory damage from conceded noise. In the absence of proof otherwise, the examiner determined that the opinion will favor the Veteran; therefore, the hearing loss is at least as likely as not related to acoustic trauma from military noise. Because the rationale for the April 2019 VA examiner’s favorable opinion was based on the incorrect premise that there was no separation examination audiogram, an addendum opinion was obtained from the same examiner in April 2020. Following a review of the available records, the examiner noted that the entrance and separation audiograms, obtained on 09/15/70, and 06/13/72, showed a bilateral normal hearing. The audiogram, obtained on 03/09/10, showed a normal hearing in the right ear; and a mild hearing loss of 35 dB at 4000Hz in the left ear. Thresholds in the left ear do not meet the criteria for disability under VA regulations therefore, in this examiner’s opinion, his hearing loss and tinnitus is less likely than not related to military service. In the rationale, the examiner noted that the Veteran’s hearing thresholds at time of entrance and separation were within normal limits. According to the American College of Occupational Medicine Noise and Hearing Conservation Committee, “a noise induced hearing loss will not progress once it is stopped.” Therefore, it was this examiner’s opinion that the Veteran’s current hearing loss is less likely than not related to military noise exposure/acoustic trauma. Service treatment records indicated no significant permanent shift in hearing thresholds greater than normal measurement variability from entrance to separation, evidence of no permanent auditory damage on active duty. The Board finds that the weight of the evidence is against a finding that the Veteran’s bilateral hearing loss is related to active service, to include his conceded in-service noise exposure. The April 2019 VA examination’s favorable opinion was based in part on the examiner’s incorrect belief that a separation examination was not of record, and thus lacks probative value. When given an opportunity to provide an addendum that included review of the separation examination, the examiner in April 2020 changed the opinion to unfavorable, and provided adequate rationale that discussed the lack of significant threshold shifts between the entrance examination and separation examination, as well as a discussion of the fact that the March 2010 examination showed normal hearing in the right ear; and a mild hearing loss of 35 dB at 4000Hz in the left ear. Although the March 28, 2017 letter from his private family practice physician suggested the Veteran to have unspecified bilateral hearing loss, deemed to probably be due to loud noise while in the Army, no rationale was provided to support this opinion. There is also no evidence that a hearing loss manifested at least to a compensable degree within one year of the Veteran’s separation from service in 1972. Hence, there is not an adequate factual basis for service connection on a presumptive basis. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). The preponderance of the evidence is also against a causal connection with in-service noise exposure. Hence, the Board finds that the preponderance of the evidence is against a causal connection between the Veteran’s hearing loss and his military noise exposure and service connection is denied. 38 C.F.R. § 3.303. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carol Eckart 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.