Citation Nr: 21002537 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 15-26 800 DATE: January 14, 2021 ORDER Service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for back disorder is remanded. 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, 1112, 1131, 1137, 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 1961 to June 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in June 2014 by a Department of Veterans Affairs (VA) Regional Office. In August 2019, the Veteran and his brother testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In November 2019 and October 2020, the Board remanded the case for additional development and it now returns for further appellate review. 1. 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. § 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. In this regard, while his service treatment records are negative for any complaints, treatment, or diagnosis referable to bilateral hearing loss, the Agency of Original Jurisdiction (AOJ) has determined that he was exposed to acoustic trauma from gunfire, artillery, and aircraft in service. Additionally, VA audiometric testing in October 2008 and April 2019 revealed bilateral hearing loss as defined by VA. Thus, the remaining inquiry is whether such disorder is related to his acknowledged in-service noise exposure. In this regard, the October 2008 VA examiner opined it is less likely than not that the Veteran’s hearing loss is related to his military service in light of the fact that his June 1961 entrance examination and May 1964 separation examination showed hearing within normal limits. However, as noted in the November 2019 Board decision, the VA examiner did not consider the Veteran’s report of temporarily losing his hearing following exposure to deafening noise from tanks and loud artillery, or he and his brother’s statements indicating he had experienced difficulty with hearing since separation and, therefore, an addendum opinion was necessary. Furthermore, although Dr. R.C., a private physician, provided a favorable opinion in August 2019, finding the Veteran’s hearing loss is as likely as not caused by the acoustic trauma he suffered in service, he did not offer a rationale for his opinion. Therefore, the Board affords it no probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); 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”). In April 2020, a VA examiner reviewed the entirety of the record and opined that the Veteran’s bilateral hearing loss was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale for the opinion, she noted that, although the Veteran reported that he was exposed to noise from artillery and tanks, a review of the record revealed hearing within normal limits bilaterally at his enlistment and separation examinations, and there was no evidence of a significant shift in hearing thresholds. The examiner further found that there was no evidence, based on the record, that the Veteran sustained noise injury based on his audiograms. She also observed that the Institute of Medicine (IOM) (2006) report stated that, based on current understanding of auditory physiology, hearing loss from noise injuries occurred immediately following exposure, and there is no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after exposure. The examiner further found that there was no evidence that the Veteran’s hearing loss manifested within one year of his separation from service, i.e., by June 1965. In October 2020, the Board found an addendum opinion was necessary given the April 2020 VA examiner’s failure to address the lay statements of record as well as the contradictory findings in the IOM’s report. Pursuant thereto, the April 2020 VA examiner offered an addendum opinion in October 2020. Therein, she again acknowledged the Veteran’s exposure to hazardous noise in service as well as his subjective reports of experiencing hearing loss while in service. The VA examiner also observed that electronic hearing testing conducted at enlistment, during service, and currently did not show a significant threshold shift beyond normal measurement variability while in service. As such, she found the evidence clearly and convincingly showed that the Veteran did not have a hearing injury while in service. Further, the VA examiner opined the evidence of record clearly and convincingly rebutted the Veteran’s subjective report of hearing loss during service. In this regard, she observed that delayed onset hearing loss due to noise exposure is unlikely to occur and, in the absence of an objectively verifiable noise injury, the association between claimed hearing loss and noise exposure cannot be assumed to exist. According to the VA examiner, the IOM clearly indicated in its landmark study involving noise injury in military service that it is difficult, if not impossible, to predict who will be noise exposed and, if they are so exposed, who will suffer noise injury. It is important to note that not everyone who is exposed to hazardous noise will suffer noise injury, and delayed onset hearing loss due to previous noise exposure is unlikely to occur. Therefore, if the evidence shows there has been no significant threshold shift beyond normal measurement variability while in service (i.e., no hearing injury while in service), the VA examiner indicated that any hearing loss occurring post-service is less likely as not caused by or a result of noise exposure while in service. She further noted that many factors can contribute to hearing loss following service, such as recreational, occupational, and environmental noise exposure, aging, disease, medications, environmental pollution, genetic/hereditary factors, and smoking. According to the VA examiner, audiograms provide objective evidence of noise injury and, in the absence of objective audiometric evidence of noise injury while in service, an affirmative opinion that the service member suffered some latent undiagnosed noise injury is utter speculation and directly contradicts the objective evidence of record. The VA examiner noted that the IOM 2006 study reviewed numerous animal and human studies and, after reviewing all studies, found “there is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure.” She also cited to subsequent longitudinal studies (Hoffman, 2015; Kiely, Gopinath, Mitchell, Luszcz, & Anstey, 2012; Lee, Mathews, Dubno, & Mills, 2005), which confirmed the consensus view (ACOEM, 2012, Humes, Joellenbeck, & Durch, 2006) that previously noise-exposed people do not experience subsequent hearing loss progression in excess of expected age-related changes. MEDICAL-LEGAL EVALUATION OF HEARING LOSS, Robert Dobie, MD, THIRD EDITION, 2015, CHAPTER 7, PAGES 158-159. Furthermore, the VA examiner explained that it is completely within the normal spectrum to have a temporary loss of hearing and even a temporary threshold shift in hearing sensitivity following exposure to loud noise. However, this does not always have a permanent effect, and the hearing will often completely recover with no adverse effects. She further stated that this is often referred to as a temporary threshold shift (TTS) and is the reason hearing conservation examinations are performed more than one time prior to resetting a baseline – to make sure that the changes were not temporary or transient in nature as this is very common. Upon review, the Board affords great probative value to the VA examiner’s October 2020 opinion as such considered all of the pertinent evidence of record, to include the statements of the Veteran and his relevant medical history, and pertinent medical literature, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez; supra; Stefl, supra. Further, the opinion is 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). In reaching this determination, the Board acknowledges that the October 2020 VA examiner relied, in part, on the 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 report acknowledged that there was little evidence to address the question of delayed onset noise-induced hearing loss. However, the 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 active duty in June 1964. In this regard, the Veteran’s May 1964 separation examination reflected hearing within normal limits bilaterally, and the record is void of reports of hearing loss until his submission of his claim in 2008, approximately 44 years following separation from service. Furthermore, the Veteran’s bilateral hearing loss still failed to meet the requirements for a compensable rating when tested in October 2008 and April 2019. 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. REASONS FOR REMAND 2. Entitlement to service connection for back disorder. In the October 2020 Remand, the Board found that VA opinion obtained in April 2020 addressing the etiology of the Veteran’s back disorder did not properly address all evidence of record. In this regard, it was noted that the VA examiner did not directly address the lay statements provided by the Veteran and his brother indicating that he experienced back pain since his separation from service. In this regard, the Board noted that the sole basis for rejecting lay statements cannot be the fact that there are no corroborating records. Thus, the Board remanded the issue for an addendum opinion addressing such matter. Later that month, the VA examiner who provided the April 2020 opinion offered an addendum opinion, which, in essence, merely repeated her previous opinion. Specifically, she again opined the Veteran’s back disorder is less likely than not incurred in or caused by his parachutist status during service, and based such opinion on the negative separation examination and absence of a chronic history of back problems in service. As rationale for rejecting the lay statements of record, the VA examiner simply replied with “no objective evidence.” Given the failure of the VA examiner to comply with prior the remand directives, the Board finds that a remand is necessary in order to obtain an addendum opinion from a different VA examiner, if possible. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is REMANDED for the following action: Forward the record, to include a copy of this Remand, to an appropriate VA clinician other than the examiner who provided the April 2020 and October 2020 opinions to obtain an opinion regarding the etiology of the Veteran’s current back disorder. After review of the evidence, the clinician should offer an opinion as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran’s back disorder, diagnosed as degenerative disc disease and degenerative joint disease of the lumbar spine, is related to his in-service parachute jumps, to include his report of an incident while he injured his back during an accident when parachuting. In offering such opinion, the clinician should consider and discuss the Veteran’s report of his in-service jumps, to include an incident when he injured his back during an accident while parachuting, and his brother’s statements indicating that he has experienced back pain since separation from service. The clinician is advised that the absence of evidence of complaints, treatment, or a diagnosis referable to a back disorder in the Veteran’s service treatment records cannot serve as the sole basis for a negative opinion. He or she is also advised that a lack of post-service treatment records demonstrating a continuity of care cannot form the sole basis of a negative opinion. Thus, if the clinician rejects the Veteran’s and his brother’s lay statements as to onset and/or a continuity of symptomatology, he or she should provide a reason for doing so beyond the mere lack of corroborating records. A rationale for any opinion offered should be provided. 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.