Citation Nr: 21000667 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-65 275 DATE: January 5, 2021 ORDER Service connection for hearing loss is denied.   FINDING OF FACT The Veteran’s hearing loss is not related to service. CONCLUSION OF LAW The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1966 to January 1970. The claim is on appeal from an August 2015 rating decision. The case was previously before the Board in June and September 2019, with the issue of service connection for hearing loss remanded both times for new VA examinations. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For the purposes of applying the laws administered by VA, impaired hearing is considered 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, 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. VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case the claims are denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service connection for hearing loss. The Veteran contends that his hearing loss is a result of his military occupational specialty (MOS) as a pararescue and recovery specialist, including exposure to prolonged, loud noise from the helicopter, and manning the machine gun during combat sorties. See April 2019 Correspondence. The Veteran’s Certificate of Release or Discharge (DD214) confirms that the Veteran’s MOS was pararescue and recovery specialist. Service treatment records (STRs) are silent as to complaints or treatment of hearing loss. There are five audiometric examinations listed in his STRs, which include his January 1966 entrance and October 1969 separation examinations, as well as in March 1966, October 1967, and February 1969. All examinations show auditory thresholds within normal limits, including under 38 C.F.R. § 3.385. In addition, at the time of his discharge examination in October 1969, the Veteran checked “no” as to having any hearing loss. VA treatment records indicate the Veteran complaining of bilateral tinnitus beginning in May 2014, for which he is service-connected. In March 2015, he reported experiencing gradual decreases in hearing over the past 40 years. The Veteran was first afforded a VA examination in October 2017. The examiner found sensorineural hearing loss impairment in both the right and left ears for VA purposes as defined in 38 C.F.R. § 3.385. However, the examiner provided a negative nexus opinion with the rationale that the hearing loss was within normal limits at the time of entrance and separation from the military, and stated that noise induced hearing loss will not progress once it is stopped. In July 2019, he underwent another VA examination. The audiologist examiner provided a similar negative opinion, noting the Veteran’s statement that his hearing loss was gradual over the past 40 years, and citing to 2005 research that does not support continuing decreases in hearing threshold levels well after the exposure to hazardous noise has ceased. After the Board’s remand, a new September 2019 VA audiological examination continued to show sensorineural hearing loss in both ears. The Veteran described functional loss in hearing that included needing people to repeat themselves, struggling to understand pertinent conversational information, and miscommunication with family, coworkers, and others leading to aggravation. However, the audiologist also failed to find a nexus, or link, between his current hearing loss and military noise exposure. As rationale, the examiner stated that the lack of significant permanent shifts in hearing thresholds, or even temporary shifts, from entrance to separation was objective evidence of no permanent auditory damage while on active duty. She summarized that although it is conceded that the Veteran experienced noise exposure, auditory damage and hearing loss are not conceded based on noise alone. Pursuant to the Board’s September 2019 remand, the Veteran’s claims file was also forwarded to an otolaryngologist (ENT) for an expert medical opinion in August 2020. After review of the file, the ENT opined that the Veteran’s hearing loss was less likely than not incurred in or caused by an in-service injury, event, or illness. He provided the rationale that the Veteran had a normal audiogram at his separation examination in 1969, and continued to have noise exposure as a pilot following separation from the military, with the first documented hearing loss in 2019, some 50 years later. The Veteran’s submission of research articles in support of his claims for delayed onset of symptoms were also addressed. The ENT distinguished the Veteran’s condition, in that the research findings were with regard to hearing loss in mice and pigs, and are not applicable for humans, and that there are no threshold shifts documented in the Veteran’s medical record as discussed in the articles. The Board finds that the August 2020 ENT expert opinion is clear and unequivocal. It is based on the relevant information, including the Veteran’s STRs and MOS with conceded noise exposure, post-service treatment records, personal medical and occupational history, and with consideration of the research studies submitted by the Veteran in support of his claim. Moreover, the examiner’s explanations are logical and follow from the facts and information given. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiner specifically considered the literature, including the Kujawa article, pertaining to hearing loss and animal studies. The Board notes there are no medical opinions of record linking the Veteran’s hearing loss to service, and thus there is insufficient evidence in support of the nexus element. Moreover, there is no indication that hearing loss manifested to a compensable degree within one year of service, or that there was a continuity of symptomatology for a chronic disease noted in service. The Board also acknowledges the Veteran’s contentions that his noise-induced hearing loss is related to his in-service noise exposure. While the Veteran’s assertions are consistent, as a lay person he has not been shown to have specialized training sufficient to render an opinion as to the etiology of hearing loss diagnosed many years after service, as such is a complex medical question. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). (Continued on the next page)   Finally, the Board notes the Veteran’s statements that he participated in combat activity. See April 2019 Correspondence and October 2019 VA Examination. The Veteran’s military records indicate that he flew 17 “combat sorties,” and was awarded the distinguished flying cross award for flying hazardous missions through “adverse weather conditions and constant threat of hostile ground fire and attack.” The finding that the Veteran engaged in combat is significant because it allows a combat veteran to use “satisfactory lay or other evidence” to establish that he was injured or incurred a disability while on active duty, even in cases where “there is no official record” that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012). However, 38 U.S.C. § 1154(b) does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). Here, the lay and medical evidence reflects that the Veteran’s hearing loss did not manifest until many years after service. The in-service hearing tests and normal separation examination constitutes affirmative evidence to the contrary of any contended in-service hearing loss. The combat provisions serve to solely show in-service exposure to loud noise in this specific case and not hearing loss itself as the factual scenario differs from Reeves. Consequently, there is no basis to conclude, based on the Veteran’s statements or otherwise, that the Veteran sustained a combat injury resulting in hearing loss in service, or other evidence that supports a nexus. 38 U.S.C. § 1154(b). In sum, the preponderance of the evidence is against the claim, particularly the nexus element, and the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for hearing loss is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morford, Associate 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.