Citation Nr: 21001582 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-08 154 DATE: January 11, 2021 ORDER Entitlement to service connection for bilateral sensorineural hearing loss (hereinafter “BHL”) is denied. FINDING OF FACT The weight of competent and credible evidence fails to show that BHL was incurred in, aggravated by, or otherwise attributable to, service or that BHJ had onset within one year of the Veteran’s separation from service. CONCLUSION OF LAW The criteria for entitlement to service connection for BHL have not been met. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5.107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Air Force from April 1976 to April 1980. The Veteran’s military occupational specialty (MOS) was that of an aircraft mechanic. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the May 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the Veteran’s claims file. In August 2020, the Board remanded this issue for additional evidentiary development. The Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service connection The Veteran contends that BHL was incurred in, aggravated by, or otherwise attributable to, active duty service. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). Some chronic diseases—to include sensorineural hearing loss—may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period, which is one year for hearing loss. 38 U.S.C.§§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Nevertheless or 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 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 addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Evidence and Analysis The Veteran’s December 1975 enlistment audiogram provided the following pure tone results in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 5 5 LEFT 15 10 5 15 10 An June 1976 service treatment record (STR) discloses that the Veteran was issued a set of earplugs and a set of earmuffs. At this this time, the following pure tone results in decibels were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 5 5 LEFT 15 10 5 15 10 An audiogram of the July 1977 provided the following pure tone results in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 10 10 LEFT 15 5 5 10 15 An audiogram of the October 1978 provided the following pure tone results in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 10 15 LEFT 10 15 0 10 15 An audiogram of the December 1979 provided the following pure tone results in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 5 5 LEFT 15 10 5 5 5 The Veteran’s April 1980 separation audiogram provided the following pure tone results in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 5 5 LEFT 15 10 5 5 5 In May 2014, the Veteran was afforded a VA examination. A clinician reviewed the claims file; considered the Veteran’s accounts of his medical history; and conducted an appropriate evaluation. Pure tone results in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 25 20 35 LEFT 25 25 30 25 30 Speech discrimination scores were 100 percent for the right ear and 96 percent for the left ear using the Maryland CNC word list. The clinician provided a diagnosis of bilateral sensorineural hearing loss in the frequency ranges of 500—4000 Hz. The clinician indicated that the Veteran endorsed that BHL functionally impacted ordinary conditions of daily life. Specifically, the Veteran reported that sometimes he experienced difficulty hearing soft voices; hearing over the telephone; and hearing the television unless it is at a high volume. See Martinak, supra. This clinician opined that the Veteran’s BHL was not at least as likely as not caused by or the result of his active duty service. The clinician provided an evidence-based rationale for this negative nexus opinion finding that the Veteran’s STRs do not support his claim; they include annual hearing tests during his active duty, all of which, showed hearing sensitivity within normal limits in both ears and no shift in hearing. Moreover, the configuration of Veteran’s BHL is not consistent with the effects of noise exposure. And, by the Veteran’s own account, he discerned hearing problems “a few years ago.” Thus, according to this clinician, this evidence provides a clear indication that Veteran’s current BHL occurred after leaving the service. In his October 2014 notice of disagreement (NOD), the Veteran stated that he was an aircraft maintenance specialist during active duty service. His duties included placing his head into engine compartments while engines were running. Further, the Veteran reported that he believed that his hearing acuity was worse than the findings indicated by the May 2014 VA clinician. In March 2016, VA received private records from MHC. Upon audiological testing, which does not conform to VA rating standards, a hearing care representative indicated that the Veteran had BHL and recommended the use of hearing aids. This hearing care representative wrote that there is a very likely chance that the Veteran’s BHL was due to exposure to noisy conditions over the years. This opinion did not include a discussion of any identified evidence. Lastly, this hearing care representative did not indicate review of the Veteran’s claims file. At the November 2018 Board hearing, the Veteran stated that he first noticed that he was having hearing problems in either 2014 or 2015. The Veteran also stated that hearing aids had been recommended and his BHL is due to exposure to noisy conditions over the years. In a September 2019 VA treatment record, a VA clinician took note of the Veteran’s hearing loss. The clinician noted that the Veteran was an aircraft mechanic and he was exposed to loud engines for extended periods of time. This notation includes no clinical findings or references to the Veteran’s in service testing. In October 2019, the Veteran submitted a statement, via VA Form 21-4138. In pertinent part, the Veteran wrote that his VA doctor highlighted that his BHL is due to being exposed to aircraft noise on the flight line in active service. The Veteran also expressed that life on the flight line was extremely noisy, which he contended had a long-term impact on his bilateral hearing. This same month, VA received an excerpted portion of the Veteran’s “HealtheVet” records. This excerpt contains one notation concerning hearing loss. This notation includes language to the effect that the Veteran was exposed to loud engines for extended periods of time as an aircraft mechanic. There is no indication here that either the Veteran’s claims file had been reviewed or an associated, clinical audiological examination took place at the time of this one notation. In January 2020, the Veteran was afforded another VA examination. A VA clinician reviewed the claims file; considered the Veteran’s accounts of his medical history; and conducted an appropriate evaluation. Pure tone results in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 35 35 45 LEFT 30 25 35 30 70 Speech discrimination scores were 88 percent for the right ear and 96 percent for the left ear using the Maryland CNC word list. The clinician provided a diagnosis of bilateral sensorineural hearing loss in the frequency ranges of 500—4000 Hz. The clinician provided a diagnosis of bilateral sensorineural hearing loss in the frequency ranges of 500—4000 Hz and 6000 Hz or higher frequencies. The clinician indicated that the Veteran endorsed that BHL functionally impacted ordinary conditions of daily life and occupation. The Veteran reported that he experienced difficulties hearing crew members when he is high on ladders. At a distance, sounds are “mumbled” unless he looked straight ahead. See Martinak, supra. This clinician opined that the Veteran’s BHL was not at least as likely as not caused by or the result of his active duty. Likewise, this clinician opined that it is not at least as likely as not that the Veteran’s BHL was caused by in-service noise exposure (if testing during service did not show hearing deficits). The clinician provided and evidence-based rationale for this negative nexus opinion. The clinician acknowledged that the Veterans duties in service involved exposure to aircraft and that the Veteran endorsed that he used hearing protection. However, the STRs provide no evidence of BHL. In supplemental remarks, the clinician noted that the Veteran’s duties in service included end of runway inspections of aircraft; serving as crew chief on a F-106 fighter jet flight line; operation of a hydraulic mole and a compressor; work in the phase dock; and serving as head in engine compartments while engines were run up in afterburner. Throughout all of these duties, as noted above, the Veteran endorsed that he used hearing protection. After service, the Veteran worked in the pest control industry for 10-to-14 years; a painting contractor for 25 years; and, at of the time of the instant examination, a house inspector. The Veteran reported that he hunted occasionally with hearing protection. This clinician underscored that the Veteran’s hearing thresholds in his April 1980 separation audiogram were normal. And, STRs disclose that BHL was monitored adequately during service. In July 2020, the Veteran submitted a 5-page document. The first 4 pages comprise a VBA customer satisfaction survey. In the narrative on page 5, the Veteran expressed his dismay at the treatment he was afforded upon his latest VA examination. The Veteran reported that he disagreed with the clinician’s assessment of the etiology of his BHL. In another lay account of July 2020, the Veteran reiterated these contentions and added legal citations; the Veteran also appended a paragraph that appears to be an excerpt from another document. It refers to two studies by the names of the authors citing a finding that noise-induced hearing loss can cause permanent damage that is only measured over time, is irreversible, and cannot be attributed to age. The paragraph also cites another study by authors names that found a link between hearing loss and tinnitus. The Veteran did not submit the studies or indicate what publications were the source of the articles and findings. The Veteran correctly noted that the absence of hearing loss in service does not preclude service connection; however there must be competent evidence that an injury in service occurred and that the current hearing loss was caused by that injury. The record does not show that these referred audiological, scientific, or medical findings are applicable to the specific facts of the Veteran’s audiological or medical histories. In August 2020, the Board remanded the appeal for an additional opinion. The Board found that the January 2020 opinion had shortcomings. Specifically, that the opinion did not address the Veteran’s reported use of hear protection in service or address the threshold shifts noted in the service examinations. In September 2020, the Veteran was afforded a VA addendum opinion by another VA audiologist who reviewed the claims file and considered the evidence. Upon a comprehensive recitation of the evidence of record, to include verbatim quotations from STRs, lay statements, private records, and VA examinations, this clinician opined that the Veteran’s BHL was less likely as not incurred in or caused by an in-service injury, event, or illness. The clinician provided a lengthy rationale to support this negative nexus opinion. The clinician noted that the Veteran’s MOS is consistent with hazardous noise exposure that could cause acoustic trauma; however, the Veteran’s STRs show that such did not occur. Upon separation, the Veteran’s bilateral hearing was normal and there were no significant shifts in thresholds. He noted that slight changes in hearing from test to test is to be expected as either variance in responses by the test taker or temporary hearing changes. There were no significant threshold changes when comparing 1975 to 1980 exams. He assessed the changes noted in STR audiograms were temporary; there was no significant threshold change between the 1975 enlistment audiogram and the 1980 separation audiogram. The audiologist addressed the March 2016 MHC hearing care representative’s notation, this clinician indicated that “very likely chance was due to exposure to noisy conditions over the years” included no clear indication whether the hearing care representative meant noise in active duty service. Further, the VA audiologist noted that there is no indication that the MHC hearing care representative is either an audiologist or clinician who has the qualifications to render a competent audiological opinion (not to mention an opinion for VA compensation purposes). The MHC records include no credentials of the hearing care representative. Moreover, there is absolutely no guidance as to whether the MHC hearing care representative had reviewed the Veteran’s claims file. The VA audiologist further noted that the 2016 BHL examination was most consistent with presbycusis or BHL due to aging. Moreover, this knowledge provides that noise-induced BHL is known for having a more pronounced high frequency loss, often called a noise notch. BHL due to aging is marked by a gradual sloping of losses from low-to-high frequencies—indicative of that reflected in the 2016 record. The VA audiologist concluded that there was ample evidence to show not only was the Veteran’s bilateral hearing normal in service, but also that there were no significant hearing changes between the Veteran’s enlistment audiogram and the Veteran’s separation audiogram. Although the Veteran was exposed to hazardous noise during his active duty service, there is no audiological evidence to support a significant change in bilateral hearing acuity due to the in-service hazardous noise. Moreover, the Veteran himself has reported that he was unaware of any BHL until his spouse made him aware of it in 2015. In November 2020 VA received a communication and copy of a private examination report from the Veteran. In the communication, the Veteran indicated that Dr. L., an audiologist, also performed audiological examinations for VA. Dr. L. indicated that he performed an in-person examination; however, there is no indication that Dr. L. reviewed the Veteran’s claims file. Pure tone results in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 30 30 LEFT 25 25 30 30 35 Speech discrimination scores were 94 percent for the right ear and 94 percent for the left ear using the Maryland CNC word list. Dr. L. provided a diagnosis of bilateral sensorineural hearing loss in the frequency ranges of 500—4000 Hz and 6000 Hz or higher frequencies. According to Dr. L., the Veteran reported that his BHL affects his family and friends. The Board assumes that this refers to the Veteran’s ordinary conditions of daily life. See Martinak, supra. Based upon findings in this one examination, Dr. L. opined that, [It] is at least as likely as not caused by or a result of military noise exposure. The Veteran was exposed to high levels of being around the flight line. The Veteran reported minimal hearing protection was given and (sic) Veterans (sic) MO showed high probability for noise. In December 2020, VA received an examination report from a VA contract audiologist on the issue of onset and cause for tinnitus. This audiologist indicated a review of the claims file including checking boxes indicating review of STRs. The audiologist acknowledged the nature and frequency of the noise exposure in service and noted the Veteran’s report of an onset of tinnitus in 1984. Based on the noise exposure and the onset of tinnitus within four years of discharge, the audiologist found that the tinnitus was caused by the noise in service without further explanation. The RO has granted service connection for tinnitus based on this opinion. No assessment of the etiology of hearing loss was provided in this report. The Board may favor the opinion of one competent medical examiner over that of another as long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert’s examination of the patient, the examiner’s knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. See Guerrieri v. Brown, 7 Vet. App. 467 (1993). Greater weight may be placed on one practitioner’s opinion over another depending on factors such as reasoning employed and whether or not and the extent to which they reviewed prior clinical records and evidence. See Gabrielson v. Brown, 7 Vet. App. 36 (1994). Furthermore, the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App, 140 (2003). While the Board acknowledges Dr. L.’s examination report, it assigns less probative weight to it, especially when compared to the VA examination reports of record. As already noted, there is no indication that Dr. L. reviewed the Veteran’s claims file or referred to and considered the in-service audiologic examinations or the Veteran’s report of the onset of sensed hearing loss in 1984, four years after service. The audiologist considered the Veteran reported minimal hearing protection and that his Air Force occupation was consistent with noise exposure. Dr. L. concluded only that noise exposure caused the current hearing loss without reference to the evidence of record or medical studies to support his rationale. The Board has considered the Veteran’s lay statements and testimony concerning the etiology of his BHL. The Veteran is competent to report discernable symptoms; however, the Veteran lacks the specialized training to render an opinion as to the etiology of BHL which requires expertise in audiology. See Jandreau, supra. The Board assigns greater probative weight to the VA clinicians’ examination reports and addendum, as discussed above. In each instance, a qualified clinician reviewed the Veteran’s claims file and considered the Veteran’s accounts of his medical history. In all but the addendum, these clinicians conducted a battery of audiometric tests. And, each clinician provided more detailed rationale to support their negative opinions. Therefore, the Board finds that service connection for BHL is not warranted on a direct basis. And, service connection for BHL is not warranted on a presumptive basis (as such was not diagnosed within one year of separation from service). The preponderance of evidence is against the Veteran’s service connection claim. As such, there are no doubts to resolve. See 38 U.S.C. § 5107(b); Gilbert, supra. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.