Citation Nr: 21002274 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 10-05 064 DATE: January 13, 2021 ORDER Entitlement to service connection for a left ear hearing loss disability is denied. FINDING OF FACT A left ear hearing loss disability was noted on the Veteran’s entrance to active service, and the weight of the probative evidence indicates that his left ear hearing loss was not aggravated by service. CONCLUSION OF LAW The criteria for service connection for a left ear hearing loss disability have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1131, 1153, 5107 (2012); 38 C.F.R. §§ 3.6, 3.303, 3.306, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the National Guard for many years, with periods of active duty from May 1975 to April 1976, December 1990 to June 1991, March 2005 to May 2006, and June 2007 to September 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2011, the Veteran and his wife testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of that hearing is of record. In May 2014, the Board issued a decision that, in relevant part, denied service connection for a left ear hearing loss disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In July 2015, the Court issued an Order granting a Joint Motion for Partial Remand (JMR) by the parties that vacated the Board’s decision and returned the issue to the Board for further appellate review. This matter was last before the Board in June 2019, when it was remanded for additional development. 1. Entitlement to service connection for a left ear hearing loss disability Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2020). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during active service, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from date 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). Under the governing criteria, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C. § 1111 (2012). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2020). If a pre-existing disorder is “noted” on entering service, in accordance with 38 U.S.C. § 1153, the veteran has the burden of showing an increase in disability during service. If the veteran meets that burden and shows that an increase in disability occurred, the burden then shifts to the government to show that any increase was due to the natural progress of the disease. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2020); Green v. Derwinski, 1 Vet. App. 320 (1991). “Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered ‘aggravation in service’ unless the underlying condition, as contrasted to symptoms, is worsened.” See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). For the purposes of applying the law 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 (specified frequencies) 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. “[W]hen audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Veteran seeks entitlement to service connection for left hearing loss, asserting that his hearing loss was incurred or aggravated due to in-service noise exposure. As an initial matter, the Board notes that the medical evidence shows that the Veteran has a left ear hearing loss disability pursuant to 38 C.F.R. § 3.385 (2020). Thus, the first criterion for establishing service connection has been met. Accordingly, the question becomes whether the Veteran’s left ear hearing loss disability was incurred in or aggravated by service. As will be discussed in more detail below, the Veteran’s May 1975 Report of Medical Examination at induction for his first period of active service revealed a left ear pure tone threshold of 40 decibels at 4000 Hertz. Thus, a left ear hearing loss disability was noted at the Veteran’s examination, acceptance, and enrollment. See 38 C.F.R. § 3.385. There is no entrance examination for any subsequent period of service showing that the Veteran’s hearing improved so that the presumption of soundness attached. Thus, the presumption of soundness is rebutted, and the claim turns on whether the Veteran’s pre-existing left ear hearing loss was aggravated during service. The May 1975 Report of Medical Examination at induction indicates that his left ear pure tone thresholds were 10, 15, 15, and 40 decibels (dB), at 500, 1000, 2000, and 4000 Hertz (Hz) respectively. No pure tone threshold was recorded at 3000 Hz. The Veteran's March 1976 Report of Medical Examination at separation indicates that the pure tone thresholds in his left ear were 0, 0, 0, and 45 dB, at 500, 1000, 2000, and 4000 Hz respectively. The Board notes that no pure tone threshold was recorded at 3000 Hz. A December 15, 1990 audiogram showed pure tone thresholds in the left ear were 10, 15, 15, 40, and 50 dB at 500, 1000, 2000, 3000 and 4000 Hz, respectively. A May 22, 1991 audiogram showed pure tone thresholds in the Veteran’s left ear of 10, 20, 20, 35, and 65 dB at those same frequencies. A September 1996 VA general medical examination noted that examination of the Veteran’s ears was normal. The examination report was silent for any reports regarding hearing loss. A January 10, 2004 audiometric examination, conducted in conjunction with the Veteran’s National Guard service, showed that the pure tone thresholds in the Veteran’s left ear were 15, 25, 25, 45, and 70 dB, at 500, 1000, 2000, 3000 and 4000 Hz respectively. A March 24, 2005 audiological examination showed that the pure tone air thresholds in the Veteran’s left ear were 10, 25, 25, 50, and 70 at 500, 1000, 2000, 3000 and 4000 Hz respectively. The Veteran's service treatment records did not contain audiometric findings at the time of discharge from this period of active service. A May 31, 2007 audiometric examination conducted by L. Klee, Au. D., pursuant to the Federal Strategic Healthcare Alliance program (FEDS-HEAL), revealed left ear pure tone air thresholds of 15, 20, 15, 55, and 65 dB, and his pure tone bone thresholds of 10, 15,15, 55, and 60 dB at 500, 1000, 2000, 3000 and 4000 Hz respectively. See https://www.gao.gov/assets/240/237916.pdf (last accessed January 8, 2021) (noting that the FEDS-HEAL program allowed early-deploying reservists to obtain required physical examinations from Army contracted local providers). In the corresponding report, the audiologist noted the Veteran had 19 years of military service that included artillery noise exposure. She also noted that he had non-military occupational noise exposure from working in the automotive industry. She opined that the Veteran had high frequency loss of hearing which was more likely than not due to noise exposure. However, she did not indicate whether the Veteran’s noise-induced hearing loss was due to his military noise exposure or his non-military noise exposure. A May 23, 2008 audiological examination showed that the pure tone thresholds in the Veteran’s left ear were 20, 15, 20, 45, and 60 dB, at 500, 1000, 2000, 3000 and 4000 Hz respectively. The remarks section noted that the Veteran reported a change in his hearing. An October 2, 2008 audiology consult notes that the Veteran reported noise exposure from mortar fire during his two tours in Iraq. He also reported 16-17 years of noise exposure from working as a truck driver. A December 2008 VA audiological examination notes that the Veteran reported military noise exposure, 16-17 years of civilian occupational noise exposure from working as a truck driver, and some recreational noise exposure. The audiologist stated that based on a review of the record, the Veteran entered and left his first period of active duty with a pre-existing hearing loss. It was noted that after service the Veteran continued to have occupational noise exposure but did not have a documented threshold shift until 1991. The audiologist opined that the Veteran’s change in hearing was most likely due to further noise exposures outside of active duty, specifically his occupational noise exposure between 1975 and 1991, and perhaps some normal age-related changes. Therefore, his current hearing loss was not aggravated due to noise exposure during active service. A March 2010 VA audiological examination notes that the Veteran reported military noise exposure from rocket-propelled grenades (RPG), sirens, bombs, and heavy machinery. He also reported occupational noise exposure while working for Chrysler and as a truck driver. At his November 2011 hearing, the Veteran testified that he had military noise exposure as a cannon crewman and from RPGs. He reported using hearing protection, in the form of foam ear plugs, during service. In a December 2012 opinion, a VA audiologist opined that the Veteran’s hearing loss was less likely as not caused by or the result of service. The audiologist explained that the Veteran had pre-existing left ear hearing loss at induction to his initial period of service. The audiologist opined that the Veteran’s pre-existing hearing loss did not permanently worsen during his first period of service. The audiologist further noted that a 1991 audiology report showed a significant shift had occurred while the Veteran was a civilian working around hazardous noise levels. The audiologist stated that there were no significant threshold shifts from 1991 through 2008 and the Veteran’s hearing “did not worsen” due to noise exposure during his periods of active duty in 1990-1991 or 2007-2008. Later in the examination report, the audiologist checked the boxes indicating that the Veteran’s hearing loss pre-existed service and was aggravated beyond the normal progression during military service. No explanation was provided to reconcile the conflicting statements. In a December 2015 opinion, a VA audiologist noted that the claims file had been reviewed and summarized the pertinent audiogram results. The audiologist noted that a review of the Veteran’s claims file and service treatment records indicated that he had pre-existing hearing loss in his left ear at induction to his initial periods of service. The audiologist opined that a comparison between the available corresponding audiograms at induction and separation revealed no significant threshold shift in the Veteran’s left ear hearing acuity during any period of active service. The audiologist explained that audiogram was the objective standard for noise injury, and because the Veteran's pre-existing hearing loss showed no significant threshold shifts during active service, there was no evidence that his military noise exposure caused a permanent noise injury affecting his hearing sensitivity. Therefore, the Veteran's current left ear hearing loss was less likely than not permanently aggravated by his military noise exposure. In a December 2016 opinion, another VA audiologist stated that the Veteran’s claims file had been reviewed and summarized the findings of various audiograms that were of significance. The audiologist opined that a comparison of the May 1975 audiogram to the March 1976 audiogram, the December 1990 audiogram to the May 1991 audiogram, and the March 2005 audiogram to the April 2007 audiogram revealed no significant threshold shifts. The audiologist noted that the audiogram is the objective standard for noise injury and there were no significant threshold shifts which occurred during any period of active duty. While the audiologist acknowledged that the Veteran was exposed to loud noise during active duty service, there was no evidence showing that his military noise exposure aggravated his pre-existing left ear hearing loss. Therefore, the Veteran's current left ear hearing loss was less likely as not permanently aggravated by his military noise exposure. In a June 2017 opinion, the December 2016 VA audiologist clarified that the VA audiology clinic defined a standard threshold shift as a 15 dB or greater decrease in hearing at two or more of the frequencies between 500-8000 Hz in the same ear, or a decrease of 20 dB or greater at any one of the frequencies between 500-8000 Hz. Therefore, the threshold shifts between the Veteran’s audiograms did not meet that criteria and were not considered to be significant threshold shifts. The audiologist further noted that the Occupational Safety and Health Administration (OSHA) considered a threshold shift to be significant if the hearing threshold changed an average of 10 dB or more at 2000, 3000, and 4000 Hz. While the audiologist acknowledge that the OSHA guideline was used to detect those "at risk" for hearing loss and not detect damage that has already been done, she noted that the Veteran's in-service threshold shifts also did not meet the OSHA criteria for a significant threshold shift. Therefore, it was her opinion that there were no medically significant threshold shifts during the Veteran’s periods of active duty. After reviewing the evidence of record, the Board finds that the weight of the probative evidence indicates that the Veteran’s pre-existing left ear hearing loss was not aggravated during any period of active service. The Board acknowledges that the Veteran’s reports of medical examination at induction and discharge indicate that his hearing thresholds fluctuated. See e.g., May 1975 and March 1976 Reports of Medical Examination; May 2007 and May 2008 audiograms. However, the VA audiologists explained that these changes were not representative of a significant threshold shift and were not evidence of in-service aggravation because the changes did not meet the definition of a significant threshold shift. As such, the audiologists opined that the audiograms weighed against finding a worsening of the Veteran’s pre-existing left ear hearing loss. See December 2015, December 2016 opinion, June 2017 VA opinions. Accordingly, despite acknowledging the fluctuations in the Veteran’s audiograms, multiple VA audiologists opined that the Veteran’s left ear hearing loss was not aggravated during service. As these VA opinions were rendered by trained audiologists, cited applicable audiology standards, were supported by adequate rationales, and were consistent with the evidence of record, they are afforded great probative weight. As noted in the September 2012 Board remand and July 2015 JMR, the December 2008 and December 2012 VA opinions contain inaccurate statements or internal inconsistencies. As such, those opinions are not probative. The Board acknowledges the assertions from the Veteran and his wife of a link between the Veteran’s current left ear hearing loss and his military service. However, the diagnosis, progression, and etiology of hearing loss are matters not capable of lay observation and require medical testing and expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). As the Veteran has not been shown to possess the medical expertise necessary to render an informed opinion on complex medical questions, such as that presented here, the Board finds the uncontradicted December 2015, December 2016, and June 2017 VA opinions to be significantly more probative than the Veteran's lay assertions. In sum, the most probative evidence indicates the Veteran's left ear hearing loss disability was noted on entrance and was not aggravated during service. Accordingly, service connection for left ear hearing loss is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Anderson 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.