Citation Nr: 21002011 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 13-25 094 DATE: January 12, 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. §§ 101(24), 1101, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.1(d), 3.6(a), 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1979 to June 1982 with additional service in the Reserve. This matter comes before the Board of Veteran Appeals (Board) on appeal from rating decisions issued in April 2010 and November 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). 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 August 2017 and December 2019, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to service connection for bilateral hearing loss. A Veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other “than dishonorable.” 38 C.F.R. § 3.1(d). The term “active military, naval, or air service” includes: (1) active duty; (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty for training during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA includes full-time duty performed by members of the National Guard of any State or the Reserve. 38 C.F.R. § 3.6(c). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 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). 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.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 bilateral hearing loss for VA purposes as demonstrated by an August 2017 VA treatment record. Specifically, while audiometric findings from October 2013 and August 2017 VA examinations were found to be inconsistent and unreliable and, thus, invalid for adjudication purposes, the August 2017 VA treatment record reveals pure tone thresholds in 500, 1000, 2000, 3000, and 4000 Hertz were 25, 35, 35, 40, and 50 decibels in the right ear, and 30, 40, 35, 45, and 45 decibels in the left ear, respectively. Further, speech discrimination was noted to be 80 percent in the right ear and 72 percent in the left ear. Thus, based on such audiometric findings, the Board finds that the Veteran has a current bilateral hearing loss disability as defined by VA regulations. Furthermore, while the Veteran’s service treatment records are negative for any complaints, treatment, or diagnosis referable to bilateral hearing loss, his in-service noise exposure related to his duties as an infantryman, to include exposure to firing pistols, M60 rifles, M16 rifles, armored personnel carriers, and trucks, has been acknowledged. Thus, the remaining inquiry is whether the Veteran’s current bilateral hearing loss is related to such in-service noise exposure. In this regard, an October 2013 VA examiner opined the Veteran’s hearing loss was less likely than not caused by or a result of an event in military service as his in-service audiograms document normal hearing at entrance and separation. In this regard, she noted that a 2005 Institute of Medicine (IOM) report concluded that, based on current knowledge, noise induced hearing loss occurs immediately and there was no scientific support of delayed onset noise-induced hearing loss weeks, months, or years after the exposure event. However, in the August 2017 Remand, the Board found such opinion to be inadequate to decide the instant claim as pure tone testing was deemed invalid for rating purposes and the examiner exhibited a fundamental misunderstanding as to the proper inquiry regarding hearing loss as he addressed whether such was demonstrated in service rather than whether a current hearing loss disability is related to in-service noise exposure. Consequently, in August 2017, the Veteran underwent another VA examination; however, at such time, the examiner stated that he could not offer an etiological opinion for the Veteran’s claimed bilateral hearing loss as inconsistent test results, poor PTA/STR, and air/bone scores suggest a non-organic hearing loss. Furthermore, while a study by Dr. S. Kujawa suggested a delayed or latent onset theory of causation, such referred to neural hearing loss and the Veteran’s speech recognition scores were not consistent with the presence of a neural hearing loss. However, in light of the August 2017 VA treatment record reflect a diagnosis of bilateral hearing loss for VA purposes and the notation therein of bilateral sensorineural hearing loss, the December 2019 Remand directed that an addendum opinion addressing the nature and etiology of such disorder be obtained. In August 2020, a VA examiner reviewed the entirety of the evidence of record and opined that it was less likely than not the Veteran’s bilateral hearing loss is the result of in-service noise exposure. As an initial matter, he noted that audiometric findings from the prior VA examinations were not reliable, but the August 2017 VA treatment record reflected a mild sloping to moderate high frequency sensorineural hearing loss bilaterally. The examiner further observed that there was nothing in the examination to indicate that the reliability was questionable. Therefore, he found that such results were considered to be reliable and demonstrate a bilateral hearing loss that meets VA’s definition. However, the examiner noted that the Veteran’s entrance and separation examinations revealed that his hearing was within normal limits bilaterally and there was no significant threshold shift between the examinations. The examiner further indicated that, according to the 2005 IOM report entitled Noise and Military Service: Implications for Hearing Loss and Tinnitus, “no longitudinal studies have examined patterns of hearing loss in noise-exposed humans or laboratory animals who did not develop hearing loss at the time of exposure. The Committee’s understanding of the mechanisms and processes involved in the recovery from noise exposure suggests, however, that a prolonged delay in the onset of noise-induced hearing loss is unlikely.” Such report further indicated that “the evidence from laboratory studies in humans and in animals is sufficient to conclude that the most pronounced effects of a given noise exposure on puretone thresholds are measurable immediately following the exposure, with the length of recovery, wither partial or complete, related to the level, duration and type of noise exposure. Most recovery to stable hearing thresholds occurs within 30 days.” The examiner also referenced a more recent publication dated in 2018 from the American College of Occupational and Environmental Medicine that stated that there was insufficient evidence to support that “previously noise exposed ears are not more sensitive to future noise exposures.” Such further stated that “there is insufficient evidence to conclude that hearing loss due to noise will progress once the noise exposure is discontinued. This is primarily based on the [IOM] report which concluded that, on the basis of available human and animal data, it was felt unlikely that such delayed effects occur.” The examiner also considered the Kujawa study from 2009 that stated that noise exposed ears in laboratory animals display neural degeneration and central issues that would not be seen on threshold audiograms. He further noted that she discussed that, although a decrease in hearing in hearing thresholds may not be noted on audiogram, there could be qualitative effects such as processing speech in noise. However, the examiner found that, while Kujawa’s study is interesting, compelling, and potentially groundbreaking, it is not a proverbial “smoking gun” that points to measurable hearing loss in humans years later. Specifically, he indicated that a great deal of these studies are based on data collected from animals and it is unknown whether or not similar outcomes would be seen in humans. In this regard, the examiner observed that studies done on humans do show shifts in objective electrophysiological test results (not puretone test results) that may indicate inner ear and/or auditory nerve damage, but they have not been replicated and the long term data is not available. Thus, based on the foregoing, and in consideration of the lack of complaints in the Veteran’s service treatment records and post-service treatment records until 2013, the examiner found that it was less likely than not that the Veteran’s bilateral hearing loss is the result of his in-service noise exposure. The Board finds that the August 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 medical history 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) (“[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 August 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 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 service. In this regard, his service treatment records are negative for any complaints, treatment, or diagnosis referable to bilateral hearing loss and his hearing acuity was normal upon the May 1982 separation examination, and he denied experiencing hearing loss in a contemporaneous report of medical history. Furthermore, bilateral hearing loss as defined by VA was not demonstrated until August 2017 and, at such time, did not meet the criteria for a compensable rating. Consequently, presumptive service connection for bilateral hearing loss is not warranted. Therefore, 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 for 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, supra. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. M. Kelly, 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.