Citation Nr: 21000671 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 18-19 905 DATE: January 5, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss did not manifest during active service, was not manifested to a compensable degree within the first post-service year and is not otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 1111, 5107(b); 38 C.F.R. §§ 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1963 to November 1965. This matter comes before the Board of Veterans’ Appeals (Board) from a decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Board previously remanded this issue in March 2019 and August 2020. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that his bilateral hearing loss is due to his active service, specifically due exposure to hazardous noise in service. The Veteran’s military occupational specialty was a wireman. Providing the benefit of the doubt, the Board finds that the Veteran was likely exposed to some hazardous noise in service. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir.1996) (table). Where a veteran served continuously for ninety days or more during a period of war or during peacetime service after December 31, 1946, and a chronic disease, such as sensorineural hearing loss, becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service. 38 U.S.C. § 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309. The disease need not be diagnosed within a presumptive period, it must be shown by acceptable medical or lay evidence that there were characteristics manifestations of the disease to the required degree during that time. Id. Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303 (b). The second and third elements outlined above may be established by showing continuity of symptomatology for certain specified diseases. Continuity of symptomatology may be shown by demonstrating “(1) that a chronic disease was ‘noted’ during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316 ; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the veteran, and the veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. 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, 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. In Hensley, the Court explained that the threshold for normal hearing is from zero to 20 decibels and that higher threshold levels indicate some degree of hearing loss. See 5 Vet. App. at 157. The Veteran’s service treatment records include an induction examination in September 1963 and a separation examination in September 1965. The Veteran underwent a puretone threshold tests. It is Board policy to convert American Standards Association (ASA) units into International Standards Organization-American National Standards Institute (ISO-ANSI) prior to January 1967. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. Thus, where necessary to facilitate data comparison the ASA standards will be converted to ISO-ANSI standard. In September 1963, the Veteran underwent an audiological examination in conjunction with his service entrance examination. The Veteran’s puretone thresholds in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 0 (10) 0 (10) X 10 (15) LEFT 15 (30) 0 (10) 0 (10) X 10 (15) The Veteran’s entrance examination included a second audiogram dated November 1963. The puretone thresholds results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 0 (10) 0 (10) X 10 (15) LEFT -5 (10) 0 (10) 0 (10) X 10 (15) In September 1965, the Veteran’s separation examination included a puretone threshold test. The results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) X X LEFT 0 (15) 0 (10) 0 (10) X X In September 2017, the Veteran submitted an October 1991 private medical record showing complaint of left ear pain. The examiner noted hearing loss upon testing. In June 2017, the Veteran underwent a VA audiological examination. The examination results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 60 80 85 LEFT 30 30 65 75 90 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. The examiner found there was not a permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 6000 Hz in either ear. The examiner opined that it was less likely than not that the Veteran’s current hearing loss was due to his period of service. The examiner explained that the Veteran’s hearing was normal at separation from military. The examiner went on to state that there is no evidence in the record that the Veteran sustained noise injuries based on audiograms. The examiner cited the Institute of Medicine (2006) report, stating that, based on current understanding of auditory physiology, hearing loss from noise injuries occurs immediately following exposure and there was no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after such noise exposure. Therefore, there was no scientific basis on which to conclude that the current hearing loss was caused by or the result of military service, to include military noise exposure. In October 2019, the Veteran underwent a VA audiological examination. The Veteran’s puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 45 70 90 LEFT 25 30 45 65 70 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 96 in the left ear. The examiner found there was not a permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 6000 Hz in either ear. The examiner opined that the Veteran’s right ear hearing loss was less likely as not caused by or a result of an event in military service. The examiner reasoned that the Veteran entered service with normal hearing loss and upon separation had normal hearing loss. The examiner found there was no standard threshold shifts at any frequency when comparing the Veteran entrance and separation hearing examination, indicating no hearing loss or auditory damage from conceded noise during active duty. The examiner further noted that the Veteran did not have documented hearing loss until 26 years after separation from service. The examiner stated that she agreed with the previous examiner that the current literature does not support late onset noise-induced hearing loss as found by the Institute of Medicine 2006 study. The examiner concluded the Veteran’s service treatment records showed the Veteran separated from service with normal hearing sensitivity, there was no standard threshold shifts were noted at any frequency and therefore the Veteran’s hearing loss is less likely than not caused by or a result of the military noise exposure. The October 2019 VA examiner further opined that the Veteran’s left ear hearing loss was less likely as not caused by or a result of an event in military service. The examiner reasoned that once the Veteran’s service hearing examination results were converted to ASA to ISO/ANSI, the Veteran’s entrance examination demonstrated that the Veteran entered service with mild hearing loss in the left ear. The examiner found that the Veteran separated service with normal hearing, without a threshold shift, indicating that the Veteran did not experience aggravation of his preexisting hearing loss from his conceded noise exposure during active duty. The examiner noted that as found by the Institute of Medicine 2006 study, the current literature does not support late onset noise induced hearing, and any aggravation of the Veteran’s preexisting left ear hearing loss from conceded noise would have been noted at separation. In June 2020, the October 2019 examiner provided an addendum opinion. The addendum opinion was requested to address the Veteran’s representative’s February 2019 brief that citied contradictory evidence to the 2006 Institute of Medicine study, notably that noise induce hearing loss can be immediate or take a long time to be noticeable. The VA examiner stated that the internet link provided by the representative did not reference a specific study or information on noise induced haring loss, but rather links to the National Institute on Deafness and Other Communication Disorder’s general website. The examiner concluded that the evidence noted in the appellate’ s brief was unclear and therefore could not be commented on. In August 2020 VA obtained another medical opinion. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned that the Veteran reported bilateral hearing loss began a long time ago. The examiner noted that the Veteran’s entrance examination showed the Veteran entered service with normal hearing in the right ear and a mild hearing loss in the left ear. The examiner noted the Veteran separated from service with normal hearing sensitivity bilaterally at all frequencies testing. The examiner found no permanent positive threshold shifts were noted when comparing the Veteran’s entrance examination and his separation examination, which indicates the Veteran did not experience hearing loss or auditory damage from conceded noise during active duty. The examiner noted that the Veteran did not report any ear related complaints during the Veteran’s separation examination. The examiner noted that the Veteran reported in March 2017 that he first noticed hearing loss and ringing in his years one ear after discharge. The examiner noted there is no evidence in the Veteran’s service medical records to support this claim. The Veteran’s medical records do not contain documentation of hearing loss until October 1991, 26 years after separation from service. The examiner stated she continued to contend that the available literature found by the Institute of Health in 2006 and confirmed by a review of the literature from 2006 to present, does not support delayed onset noise-induced hearing loss. The examiner noted there is some evidence noise exposure may cause cochlear synaptopathy. It is hypothesized that damage could present as a “hidden hearing loss” characterized impaired speech in noise performance in the presence of a normal audiogram. While noise induce cochlear synaptopathy has been confirmed in animal studies, it has not been confirmed in humans, as it can only be diagnosed definitively by postmortem temporal bone analysis. As the National Center for Environmental Health states, [t]he hearing loss progresses as long as the exposure continues.” Once the noise exposure is removed, hearing loss no longer progresses. The examiner noted she could not find evidence in the medical literature that normal hearing thresholds following cessation of noise exposure become elevated years later. In the current case, the Veteran’s service medical records show he separated from service with normal hearing sensitivity. The Veteran reported onset of hearing loss one year after separation from service, however, there is no available medical record to support the Veteran’s claim. The examiner concluded that there is no nexus to relate the Veteran’s current hearing loss to military noise exposure. The August 2020 VA examiner also addressed the medical literature presented by the Veteran’s representative’s June 2020 informal hearing presentation. In response to “Current Insights in Noise Induced Hearing Loss: A literature review of the underlying mechanism, pathophysiology, asymmetry, and management options” the examiner explained that although it is an interesting topic, there is not enough conclusive evidence to say with a degree of certainty that noise-induced cochlear synaptopathy is present in the human population and results in impaired speech perception in noise. The examiner further addressed the representative’s argument that Veteran’s left ear is more negatively affected by noise and that the Veteran’s had left ear hearing loss. The examiner agreed with the literature that seems to indicate the left ear is more negatively impacted by noise exposure than the right ear, even when noise exposure is symmetric, however, while the most recent audiogram dated October 2019 showed the Veteran’s right ear hearing sensitivity to be significantly poorer than the left, audiograms dated in June 2017 and April 2018 showed symmetric sensorineural components to the Veteran’s hearing loss. Thus, even though poorer left ear hearing sensitivity may be a sign of a noise-induced hearing loss, it does not apply in this case. The examiner responded to the identified literature of “Loud Noise Can Cause Hearing Loss: How Does Loud Noise Cause Hearing Loss.” This article relates to the damaged hair cells effect on hearing loss. The examiner responded that hair cell loss is not specific to noise-induced hearing loss. Auditory hair cell loss can be caused by genetic defect, ototoxicity, acoustic trauma, and as part of the aging process. The examiner cited a recent Journal of Neuroscience that found normal age-related hearing loss, like noise-induced hearing loss, is marked by the loss of hair cells. The examiner further noted that while the article cited by the representative states that “[b]y the time you notice hearing loss, many hair cells have been destroyed and cannot be repaired” it is not speaking to delayed onset hearing loss but rather assuming the individual is experiencing continued noise exposure that results in a gradual hearing loss over the course of the noise exposure. The examiner noted that the article later states that “hearing loss progresses as long as the exposure continues.” The examiner concluded that once the noise exposure ceases, there is no further progression of hearing loss. In response to the cited National Academies of Science and Engineering Medicine 2020- Noise & Military Service Study, the examiner noted that she is not able access the article but understood the idea presented in conjunction with the Institute of Medicine Report (2006) that a person may not become aware of their noise-induce hearing loss until there is enough age-related hearing loss coupled with their noise-induced hearing loss to produce an overall moderate hearing loss. The examiner explained that the Institute of Medicine’s report specifically provides a hypothetical example of a young adult with hearing loss noted at separation, who if not informed of his hearing loss by the examiner at separation, may not be aware of his hearing loss until he is 50-60 years old, the point at which he has experienced enough age-related hearing loss combined with previous noise induced hearing loss to experience communication difficulty. The additional hearing loss noted when he is 50-60 years of age is not the result of the progression of his noise-induced hearing loss, but the addition of excepted age-related hearing loss. In this hypothetical, regardless of when the adult became aware of his hearing loss, hearing loss was noted at separation and in that case, hearing loss at separation that was not present at entrance would be service connected. Unlike the hypothetical example provide by the Institute of Medicine, the Veteran had normal hearing at separation. In an April 2018 private medical report, the Veteran reported that he served two years in the military with noise exposure during 8 weeks of training and an additional eight weeks of artillery training. The Veteran reported that he served as a messenger where there was artillery noise all around him. The private examiner stated it was at least as likely as not that the Veteran’s current hearing loss was due to his military service or aggravated by his military service. Initially, the Board finds that the August 2020 VA medical opinion is more probative than the April 2018 private examiner opinion. The private medical examiner did not provide a rationale as to why the Veteran’s hearing loss was caused by the Veteran’s noise exposure. Despite the Veteran’s October 2020 statement that the private medical examiner did provide a rationale, the Board finds that a mere recitation of the Veteran’s reported history does not equate a rationale for a positive opinion. Notably, the private examiner failed to discuss the Veteran’s service treatment audiological findings or provide any discussion regarding delayed onset hearing loss. Thus, the private medical examiner’s opinion provides limited probative value. In the alternative the August 2020 VA examiner’s opinion is adequate and probative for VA purposes because the examiner relied on sufficient facts and data, acknowledged the Veteran’s in-service noise exposure, considered the Veteran’s reported history, provided a rationale for the opinions rendered, and provided a detailed review of medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, the Board finds that the Veteran has a current diagnosis of bilateral hearing loss. The Board concedes in-service noise exposure. However, the Board finds that the Veteran’s hearing loss was not caused by his in-service exposure to noise exposure as the most probative evidence is the August 2020 VA medical opinion which found the Veteran’s hearing loss was less likely than not etiologically related to service. Thus, service connection for bilateral hearing loss is not warranted. Service connection on presumptive basis is also not warranted. The Veteran indicated that his bilateral hearing loss began a year after he left service. However, the Board does not find that the Veteran’s statements are competent to determine he had hearing loss for VA compensation purposes in service or within one year of service. A diagnosis of bilateral hearing loss falls outside the realm of common knowledge of a lay person when the facts of this specific case are considered. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As noted above, hearing loss for VA purposes is a strictly defined by puretone threshold measurements and word discrimination tests. The evidence does not demonstrate that the Veteran has the required expertise to make this assessment and no examiner has related the Veteran’s current hearing loss to his service or to any complaints or reports of ongoing hearing loss after service. The Veteran’s service separation examination report reflects that the Veteran was examined, and hearing loss was not shown on audiometric testing. The earliest date in the record of a formal diagnosis of any hearing loss by a medical profession was in October 1991. Therefore, the Board finds that bilateral hearing loss on a presumptive basis is not warranted. Therefore, the Board finds that the weight of the evidence is against the claim and service connection for bilateral hearing loss is not warranted. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten 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.