Citation Nr: 21001790 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 17-25 262 DATE: January 11, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT Bilateral 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 bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1962 to June 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in August 2015 by a Department of Veterans Affairs (VA) Regional Office. In May 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In February 2020, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to service connection for bilateral 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). 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. See 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. See 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). 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, 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. The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, supra, at 159. 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.R.F. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran claims that he currently has bilateral hearing loss as a result of exposure to noise during his military service. Specifically, he reports that he was exposed to excessive noise without hearing protection while performing his duties as a light weapons infantryman and radio telephone operator, and when jumping out of airplanes during airborne training. The Veteran further states that he experienced hearing loss during and since service. Thus, he contends that service connection for bilateral hearing loss is warranted. As an initial matter, the Board notes an August 2015 VA examination report reflects audiometric findings that meet the criteria for a hearing loss disability as defined by VA. 38 C.F.R. § 3.385. Further, while the Veteran’s service treatment records do not reflect complaints, treatment, or a diagnosis referable to bilateral hearing loss, his service personnel records reflect that he served as a light weapons infantryman/rifleman and radio telephone operator, participated in basic airborne training, qualified as a Marksman on the Rifle M-14, and was awarded the Parachutist Badge. Therefore, the Board finds his reports of in-service noise exposure to be competent and credible. Consequently, the remaining inquiry is whether the Veteran’s bilateral hearing loss is related to his military service, to include his acknowledged in-service noise exposure. In this regard, VA audiologists provided unfavorable nexus opinions in August 2015, August 2020, and October 2020. Given the Board’s previous finding in the February 2020 Remand that the August 2015 VA examiner’s opinion was insufficient upon which to base a determination of entitlement to service connection, such will not be further considered herein. In August 2020, the VA audiologist reviewed the entirety of the evidence of record and opined the Veteran’s bilateral hearing loss is less likely as not a result of military noise exposure. In this regard, she noted the Veteran was released from active duty with normal hearing bilaterally and found that such suggested that his hearing loss occurred after active duty due to factors unrelated to military service. In her rationale, the VA audiologist referenced the Institute of Medicine (IOM) 2005 study, which revealed there is not sufficient evidence from longitudinal human studies to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure. With respect to the instant case, the VA audiologist stated such findings did not apply as the article was referring to the presence of hearing loss before awareness. In this regard, she determined there was no evidence to support the presence of hearing loss for which the Veteran could be aware. The VA audiologist also cited additional medical literature in the form of an article entitled, “Test Re-test Variability”, wherein the authors found an audiologist would have to see a change in audiometric test-retest threshold of approximately 10 to 15 decibels to be 95 percent confident that the difference did not occur as a result of variability due to measurement error. Consequently, a large change in hearing sensitivity must occur before it can be detected. The VA audiologist went on to explain that there are no human studies available that have provided the clinical correlation necessary to draw conclusions and medical opinions beyond speculation regarding delayed onset hearing loss at this time. Literature that supports delayed onset hearing loss, such as that submitted by the Veteran in May 2019 (i.e., a study by Dr. Sharon G. Kujawa), is based on studies of mice tested at frequencies above the traditional audiometric test battery. In fact, conclusions drawn by the researchers indicated a need for further study in this area, which was insufficient for drawing clinical correlations. She further explained that there is not yet a direct nexus that can be drawn from mice tested at supra-frequencies and human subjects tested at traditional frequencies, to include VA-accepted adjudication frequencies. Thus, the VA audiologist found the studies that suggest delayed onset hearing loss in animal subjects are not considered to be clinically predictive because there are a cohort of veterans exposed to hazardous noise levels who do not incur hearing loss immediately or later in life. In other words, she determined that the Veteran’s exposure to hazardous noise as reported is not presumptive evidence to grant service. The VA audiologist found the rationale in favor of the current claim is speculative to suggest that exposure is greater evidence than the diagnostic measures themselves. In October 2020, the same VA audiologist provided an addendum opinion, finding there is no evidence available to determine, without resort to speculation, if the Veteran’s hearing loss occurred within one year of release from active duty. She explained that, in 15 years of providing hearing evaluations to veterans within one to five years of active duty separation, she had tested more veterans who had perceived that they had hearing loss, yet did not have hearing loss upon audiological assessment, than those who report a hearing loss and, in reality, have hearing loss upon assessment. In the VA audiologist’s experience, the perception of hearing loss is not an accurate predictor of the presence of impaired hearing. Upon review, the Board affords great probative value to the VA audiologist’s August 2020 and October 2020 opinions as such considered all of the pertinent evidence of record, to include the Veteran’s medical history and lay statements, and relevant medical literature, 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). Further, the opinions are consistent with the contemporaneous medical evidence of record, to include the Veteran’s service treatment records as noted above and his post-service treatment records as discussed below, and contemplate his specific circumstances. Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 10 Vet. App. 297, 284 (1997). Moreover, there is no medical opinion to the contrary. In reaching this determination, the Board acknowledges that the August/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. 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.” The Board also finds that the medical articles submitted by the Veteran are not accompanied by any corresponding clinical evidence specific to him and do not suggest a generic relationship between his bilateral hearing loss and his in-service exposure to acoustic trauma with a degree of certainty such that, under the facts of this specific case, reflects plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Consequently, such articles are insufficient to establish service connection for the Veteran’s bilateral hearing loss. Wallin v. West, 11 Vet. App. 509 (1998); Sacks v. West, 11 Vet. App. 314 (1998); Libertine v. Brown, 9 Vet. App. 521 (1996). The Board has considered the Veteran’s assertions as to the etiology of his bilateral hearing loss. However, while he is competent to report his in-service noise exposure, as well as a decrease in his hearing acuity, the Board finds that he is not competent to offer an opinion as to whether his bilateral hearing loss is related to any instance of his service since he does not possess the requisite medical knowledge to offer such an opinion. Specifically, the etiology of such disorder, to include whether such is related to his in-service noise exposure that occurred decades previously, involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Therefore, as such is a complex medical question, the Veteran, as a lay person, is not competent to offer an opinion as to the etiology his bilateral hearing loss, and, consequently, his opinion on such matter is afforded no probative weight. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Furthermore, the evidence of record fails to demonstrate that bilateral hearing loss manifested to a compensable degree within one year of the Veteran’s separation from active duty in June 1965. VA treatment records do not reflect relevant complaints of or treatment for hearing loss until 2001, approximately 36 years following separation from service, and he has not submitted any treatment records dated within the year after his discharge from active duty that show complaints, treatment, or a diagnosis referable to bilateral hearing loss. Furthermore, according to a February 2015 VA treatment record, the Veteran could not remember the onset of his hearing loss, although he stated it was at least 12 years previously. The Board also affords significant probative value to the VA audiologist’s opinion with respect to the Veteran’s perception of post-service symptomatology compared to actual hearing loss for diagnostic purposes. As a result, the Board finds presumptive service connection for bilateral hearing loss is not warranted. In conclusion, the Board finds that bilateral 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 of entitlement to service connection for bilateral 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, 1 Vet. App. at 53. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.