Citation Nr: 21000248 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 17-47 277 DATE: January 4, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT Hearing loss for VA purposes was not manifested during active service or within one year from the date of separation from service and current hearing loss is not related to active service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1962 to December 1963. This issue comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2019 and July 2020, the Board remanded this case for additional development. It has since been returned to the Board for further consideration. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110. 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). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a “chronic condition” under 38 C.F.R. § 3.309 (a) is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A veteran can establish continuity of symptomatology with competent evidence showing: (1) that a condition was “noted” during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303 (b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss and tinnitus are recognized by VA as a “chronic condition” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). A veteran will be found to have hearing loss for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. For service connection, in-service noise exposure need not be the only source of acoustic trauma; it must only be a contributing source. The absence of in-service evidence of hearing loss disability during a veteran’s period of active duty is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss 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 disability. Hensley, 5 Vet. App. at 159. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). 1. Entitlement to service connection for bilateral hearing loss is denied. The Veteran contends that his hearing loss is the result of acoustic trauma he experienced in-service. The Board first received this claim in November 2014. The competent evidence of record documents the presence of current hearing loss. The October 2020 VA examination results revealed that the auditory threshold in at least two of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is greater than 40 decibels. The Veteran’s DD-214 indicates that his Military Occupational Specialty (MOS) was a heavy weapons infantryman; based on this the Board finds the Veteran had a high probability that he was exposed to acoustic trauma during active service. Therefore, the two Shedden criteria are met and not in dispute. Therefore, the remaining issue for the Board to decide is whether there is a causal connection between the current hearing loss and the exposure to in-service acoustic trauma. The Board finds a preponderance of the probative evidence to be against such a causal connection. As such, the claim for service connection must be denied. In the 1960s, the military changed its standard of measuring hearing acuity, replacing the American Standards Association (ASA) units with the current International Standards Organization (ISO) units. Prior to January 1, 1967, service departments are assumed to have used ASA units. Service departments are assumed to have changed to ISO units after December 31, 1970. For the period between January 1, 1967, and December 31, 1970, VA is to consider the data under both the ASA and ISO standards unless it is clearly indicated which units were used. The Veteran had an in-service audiological evaluation in November 1963, at which time auditory thresholds were recorded. The results of this testing have been converted from ASA units to ISO units. The Veteran’s service treatment records (STRs) are silent as to complaints of, diagnosis of, or treatment for hearing loss. A whispered voice testing conducted during a November 1961 entrance examination was 15/15. The Board notes that whispered voice testing is not probative of the presence of absence of hearing loss. Other than the whispered voice testing, there is no evaluation of the Veteran’s hearing acuity during active duty. There is also no evidence at all of the presence of any hearing loss. At the time of the November 1963 separation examination, audiometric testing revealed test scores of 0 decibels at 500, 1000, 2000 and 4000 Hertz. Significantly, the Veteran denied having or ever having had hearing loss on a report of medical history he completed in November 1963 in conjunction with the separation examination. There is no evidence of hearing loss for VA purposes in the contemporaneous medical evidence from active duty and shortly thereafter. The record contains no medical evidence dated between December 1963 and December 1964 - within the first year of discharge from service - indicating hearing problems or that audiological testing was conducted. The first complaint of hearing loss is dated many years after the Veteran’s discharge. There is no competent evidence of the presence of hearing loss to a compensable degree within one year of discharge. Service connection for hearing loss on a presumptive basis is not warranted. In March 2015, the Veteran underwent a VA examination. The Veteran was diagnosed with bilateral sensorineural hearing loss. Testing revealed hearing loss for VA purposes. The Veteran reported noise exposure from small arms fire and mortars. He reported no use of hearing protection. After separating from military service, the Veteran worked in construction the remainder of his working life. He stated that he did not use hearing protection. He also was a hunter and stated that he did not use hearing protection. The examiner then gave a negative etiology opinion as to whether the hearing loss is related to military service. The examiner’s rationale was that although the Veteran’s enlistment physical examination in November 1961 indicates that his bilateral hearing was tested using the whispered voice test, his separation physical examination in November 1963 indicated normal hearing in both ears with all pure-tone thresholds at zero decibels. The Veteran’s hearing loss impacts his ordinary conditions of daily life and ability to work as he has difficulty hearing and understanding conversational speech. On his August 2017 Substantive Appeal, the Veteran wrote that his hearing loss is due to in-service noise exposure to mortar explosions and gun fire which took place three to four feet from his ears on the left side. He also stated that he was offered no ear protection in-service, but that he did use hearing protection in his post-service career as an engineering equipment operator for the National Park Service. The Board notes the current audiometric test results indicate greater hearing impairment in the left ear which would support the Veteran’s report of being exposed to the noise of mortars firing on the left side of his body during active duty. In a December 2019 addendum opinion to the March 2015 VA examination, the examiner provided a negative etiology opinion as to whether the hearing loss is related to military service. As rationale, the examiner stated that the Veteran’s November 1961 entrance examination indicates that his hearing was assessed using the whisper voice test which does not incorporate the use of pure-tone stimuli. He was given a passing score on this exam and was allowed to enlist. His November 1963 separation examination indicated normal hearing bilaterally with all responses to pure tone recorded as zero decibels. These responses reported are ISO standards for pure-tone thresholds and indicated excellent hearing. To date, there is no research data that this examiner is aware of that supports a theory of delayed onset of hearing loss once an individual is no longer exposed to loud noise. It is still this examiner’s opinion that the Veteran’s present hearing loss is unrelated to exposure to noise exposure while serving in the military. Pursuant to the Board’s most recent remand, in October 2020, the Veteran underwent a VA examination. The Veteran was diagnosed with bilateral sensorineural hearing loss. Testing revealed hearing loss for VA purposes. The Veteran asserts that his hearing loss began in military service and got worse through the years. He states that he cannot understand people and he misses what people are saying to him. After service, the Veteran states that he was an equipment operator with the park service for 27 years. Hearing protection was required when running the equipment. As recreational noise, he uses lawn maintenance equipment with hearing protection. The examiner then gave a negative etiology opinion as to whether the hearing loss is related to military service. The examiner’s rationale was the Veteran’s entrance examination was a normal whisper exam which is not reliable indicator of hearing sensitivity. His separate examination was a frequency specific threshold exam using ISO standards with 0dB thresholds. While the Veteran’s MOS carried a high probability of noise exposure, his hearing was shown to be normal at his separation from military service. Therefore, a nexus cannot be made to the hearing loss and military service. The Veteran’s hearing loss impacts his ordinary conditions of daily life and ability to work as he has difficulty hearing his wife and friends. In an addendum opinion obtained in October 2020, the examiner again gave a negative etiology opinion as to whether the hearing loss is related to military service. As rationale, the examiner stated that the Veterans entrance exam was a normal whisper exam which is not a reliable indicator of hearing sensitivity. His separation exam was a frequency specific threshold exam using ISO standards with 0dB thresholds. While the Veteran’s MOS carried a high probability of noise exposure, his hearing was shown to be normal at his separation from military service. The Veterans specific description of his location to the mortars to his left side would yield probable hearing loss greater at the left side, however, the October 2020 audiological testing revealed symmetrical hearing loss. The Veteran’s post military career involved working with loud machinery with road work. While reported hearing protection was worn, his time since military service has been 57 years ago. With his separation exam showing well within normal limits frequency specific hearing thresholds, his 27 years of road machinery and time since military service being 57 years ago and the normal progression of hearing loss for age, the Veterans hearing loss is less likely than not caused by or a result of an event in military service. Based on the evidence of record, the Board finds that the Veteran’s hearing loss is not due to his military service. The Board finds the negative VA etiological opinions more persuasive. The examiners are audiologists who noted the Veteran’s self-reported medical history and exposure to noise during service, indicated a review of the claims file, interviewed the Veteran, and examined the Veteran. Further, the opinions are based on the evidence summarized earlier, which indicates no hearing problems for approximately 57 years following service. The rationale is supported by a complete review of the Veteran’s file. As such, the Board finds the opinions to be of probative value. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician’s statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). There is no evidence of continuity of symptomology of hearing loss from discharge to the present. The Veteran denied having or ever having had hearing loss at the time he completed his discharge examination. To the extent that the Veteran now alleges he has had hearing loss since active duty, the Board places greater probative value on the contemporaneous evidence of record in the service treatment records. This evidence demonstrates the Veteran did not have hearing loss during active duty and did not believe that he had had hearing loss during active duty. The evidence demonstrates that, for approximately 57 years following service, the Veteran did not have characteristic manifestations sufficient to identify a chronic disease entity. See 38 C.F.R. §§ 3.303, 3.307, 3.309; see also Walker, supra. Nevertheless, when hearing disability is not demonstrated at separation from service, service connection may be established later by submitting evidence that the current disability is causally related to service. See Hensley, supra. The Veteran contends that he was exposed to greater acoustic trauma on the left side of his body as a result of his position while firing mortars. The issue of medical nexus is addressed here in the October 2020 VA examination reports. The examiner found hearing loss unrelated to service. In support, the examiner stated that the Veteran’s specific description of his location to the mortars to his left side would yield probable hearing loss greater at the left side, however, the October 2020 audiological testing revealed symmetrical hearing loss. In addition, the Veteran’s post military career involved working with loud machinery with road work. While reported hearing protection was worn, his time since military service has been 57 years ago. This history cited by the examiners is accurate based on a review of the evidence of record and the Veteran’s self-reported history as provided at discharge. In assessing the claim, the Board has considered the Veteran’s lay opinion that he currently experiences hearing loss as a result of military service. While he is competent to report observable symptoms such as diminished hearing capacity, he is not competent to link current hearing loss to military noise exposure. As a layperson, the Veteran is not competent to make a complex medical determination as to the etiology of hearing loss. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). This requires specialized training and testing. The Veteran’s opinion that his current hearing loss is due to military service is without probative value. He is not competent to provide an opinion regarding the etiology of the hearing loss. In addition, the evidence of record demonstrates that the Veteran’s hearing loss is not the result of his military service. Accordingly, his statements are entitled to less probative value. The Board further places greater probative weight on the contemporaneous evidence of record in the form of the service treatment records which were silent to complaints of, diagnosis of or treatment for hearing loss and the Veteran affirmatively denied experiencing hearing loss at the time of the separation examination. The Board finds that based on the evidence of record, the Veteran’s hearing loss is not the result of his military service. As the preponderance of the evidence is against the claim of entitlement to service connection for hearing loss, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. M. Miller Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hughes 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.