Citation Nr: 21000507 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-02 764 DATE: January 5, 2021 ORDER Service connection for left ear hearing loss is denied. FINDING OF FACT Left ear hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest to a compensable degree within one year of separation from active duty. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 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 from April 1963 to March 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran and his son testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In June 2019 and October 2020, the Board remanded the case for additional development and it now returns for further appellate review. . Entitlement to service connection for left ear hearing loss. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA’s Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purposes of applying the laws administered by the 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. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Board notes that the Veteran has been diagnosed with left ear hearing loss for VA purposes as demonstrated at an April 2014 VA examination. Furthermore, his in-service noise exposure, described as exposure to heavy equipment, diesel engines, aircraft, and arms file from artillery and tanks, has been established, and he has been awarded service connection for tinnitus and right ear hearing loss based on competent opinions linking such disorders to his in-service noise exposure. Thus, the relevant inquiry is whether the Veteran’s currently diagnosed left ear hearing is related to his acknowledged in-service noise exposure. However, as the evidence does not show, and the Veteran does not report, that he was diagnosed with left ear hearing loss as defined by VA during or within one year of service. Further, he denied experiencing any related symptomatology upon separation from service, thus failing to establish a continuity of symptomatology since service, and his own assertions that his current left ear hearing loss is related to service cannot serve to establish, on their own, the requisite nexus to service as he lacks the competence to offer such opinion. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a lay person is not considered competent to testify regarding medically complex issues). As such, a competent medical opinion is required to decide the claim. In this regard, the Board twice remanded this claim to obtain an adequate medical opinion addressing whether the Veteran’s left ear hearing loss is related to his in-service noise exposure, instructing examiner to review his reports of experiencing difficulty hearing since service and a post-service audiogram performed in 1978 by his employer that reflects audiometric evidence of a left ear hearing loss. Such an opinion was rendered by a VA audiologist in October 2020, at which time she opined that it is less likely than not that the Veteran’s current left ear hearing loss is related to his in-service noise exposure, based on the audiological data of record. In this regard, the VA audiologist noted that the February 1965 separation examination as converted to ISO/ANSI standards showed impaired hearing in the right ear (for which the Veteran is service-connected), but normal hearing acuity in all tested thresholds in the left ear, whereas the audiological data obtained by the Veteran’s post-service employer (an oil company) upon leaving his employment in 1978 reflected left ear hearing acuity that was significantly worse than right ear hearing acuity. She then concluded that this pattern of hearing loss, reflecting a significant post-service decrease in left ear hearing acuity only, failed to suggest that any left ear hearing loss detected in 1978 was related to service. The audiologist further referenced a 2005 Institute of Medicine (IOM) report that determined that the delayed onset of hearing loss related to prior acoustic trauma was unlikely. As such, the audiologist concluded it was less likely than not that the Veteran’s current left ear hearing loss is attributable to his acknowledged in-service noise exposure. The Board finds that the October 2020 VA examiner’s opinion is entitled to great probative weight as such opinion considered all of the pertinent evidence of record, to include the Veteran’s statements regarding the onset and continuity of symptomatology and the 1978 audiogram, and provided a detailed rationale for the conclusions reached, relying on and citing to the records reviewed. Furthermore, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Notably, there is no medical opinion to the contrary. In reaching this determination, the Board acknowledges that the October 2020 VA examiner relied, in part, on the 2005 IOM report as a basis for providing a negative opinion, which has qualifying or contradictory statements, which she, in fact, acknowledged. McCray v. Wilkie, 31 Vet. App. 243 (2019). However, the Board finds that such does not render the opinion inadequate or diminish its probative value. In this regard, the Board notes that the IOM report acknowledged that there was little evidence to address the question of delayed onset noise-induced hearing loss. However, the IOM report’s own finding that, based on the anatomical and physiological data available on the recovery process of noise exposure, it is unlikely that delayed hearing loss effects occur is probative. This statement tends to show that the limitation was considered, but the IOM was confident in the available data (anatomical and physiological) to make a conclusion utilizing a strongly worded term (“unlikely”). Indeed, the committee noted its understanding of the mechanisms and processes involved in the recovery from noise exposure as it suggested “a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely.” Therefore, the Board finds that left ear hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest to a compensable degree within one year of separation from active duty. Consequently, service connection for such disorder is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim for service connection for left ear hearing loss. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Northcutt, 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.