Citation Nr: 21002658 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 13-02 389 DATE: January 14, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT Bilateral hearing loss was not demonstrated to a compensable degree within one year of discharge from active duty, and the most probative evidence of record does not show bilateral hearing loss to be etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by active service, nor may bilateral sensorineural hearing loss be presumed to have been incurred therein. See 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1960 to March 1962. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107. By way of background, this matter came before the Board in March 2016 and was remanded for further development; it was then brought back before the Board in March 2018, at which point, it was once again remanded back to the RO to contact the Veteran and request that he provide the information that was reportedly in a June 2014 VA Form 119, Report of Contact his representative had referenced, which is not in the claims file. Specifically, the RO requested in a September 2018 letter to the Veteran that he provide information as to the timeframe that he first noticed difficulty hearing. He did so in a statement received later in September 2018. As for the examination requested in the 2016 remand, that was completed in 2017. The RO complied to the extent possible with the remand instructions and issued a supplemental statement of the case (SSOC) denying service connection for hearing loss in February 2020. The Board finds there has been substantial compliance with the 2016 and 2018 remand instructions, and the hearing loss claim is ready for disposition on the merits. See Stegall v. West, 11 Vet. App. 268, 271(1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board's decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a current 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 in or aggravated by service. See 38 C.F.R. §§ 3.303 (a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. For the purposes of applying the laws administered by VA, impaired hearing is considered 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, 4000 Hertz are 26 decibels or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. Service connection may also be established on a presumptive basis for certain “chronic diseases” listed in 38 C.F.R. § 3.309(a) where the evidence shows a chronic disease in service, or “continuity of symptoms” after service. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Sensorineural hearing loss is considered to be an organic disease of the nervous system, and therefore a chronic disease eligible for presumptive service connection consideration. See 38 C.F.R. § 3.309(a); see also Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant, when rendering a decision on appeal. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). 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; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. See Gilbert, 1 Vet. App. at 53. Secondary service connection may be granted for a disability that is proximately due to a service-connected disease or injury, or that a service-connected disease or injury aggravated (increased in severity) the nonservice-connected disability for which service connection is sought. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.310. The Veteran is service-connected for tinnitus, but there is no suggestion in the medical evidence that tinnitus caused or aggravated hearing loss, so a theory of secondary service connection is not applicable here. The Board further finds that service connection is not warranted on a presumptive or direct basis.  The Veteran submitted a statement where he contends that his hearing loss stemmed from acoustic trauma during his military service, mainly from frequently experiencing the blast from the tank’s main gun as a loader on the M76 tanks. See March 2014 Statement in Support of Claim. However, exposure to acoustic trauma alone is not sufficient to warrant service connection for hearing loss.  As an initial matter, hearing loss was not factually shown during service.  The Veteran does not allege, and there is no record of complaints or treatment during service addressing the Veteran’s hearing. The Veteran also completed a Report of Medical History in February 1962, wherein he denied having any ear trouble or hearing loss as part of his separation exam. The audiogram done at separation reflected the Veteran’s hearing within normal limits. The Veteran’s post-service treatment records show that the Veteran consistently denied symptoms of hearing loss, ear pain or discharge, and vertigo. See December 10, 2003 VA treatment records. In March 2004, the Veteran complained of tinnitus, but specifically denied any hearing loss symptoms. See March 20, 2004 VA treatment records. It was noted that audiometry showed a moderately-severe loss at 4000-8000 Hertz in the right ear and a moderately-severe loss at 8000 Hertz in the left ear. In April 2004, during a neurology exam, the Veteran was noted as reporting his hearing was intact. See April 12, 2004 VA treatment records. In February 2010, a pre-operative assessment noted the Veteran’s hearing status was good. See February 26, 2010 VA treatment records. The Veteran first complained of hearing loss symptoms in January 2012. See January 17, 2012 VA treatment records (noting Veteran complaining of having hearing issues, wants to be evaluated). In March 2012, audiological records indicate he was noted as reporting his hearing had worsened in both ears, and the testing revealed his hearing had decreased by 15-20 decibels in his right ear and by 10-20 decibels in his left ear at the 2000-8000 frequency ranges as compared to previous 2004 audiology exam. However, no nexus opinion was offered. As such, the Veteran’s post-service records show that he was not diagnosed with hearing loss within one year of separation from service and did not experience a continuity of symptomatology from the alleged in-service occurrence of acoustic trauma to diagnosis. There is no showing of hearing loss until 2004, but he did not allege continuous symptoms during his initial audiological 2004 consultation, as he expressly denied significant hearing loss at that time (his main complaint was tinnitus). Therefore, presumptive service connection is not warranted.  In April 2012, the Veteran underwent a VA audiological examination. During the examination, the Veteran claimed that it was “hard to hear people talk.” See April 2012 VA exam. After a review of the Veteran’s file and an audiological evaluation, the examiner found the Veteran had bilateral sensorineural hearing loss.  The examiner opined that the Veteran's hearing loss was less likely than not (less than 50% probability) caused by or a result of an event in military service, and noted the Veteran’s separation audiometric exam which revealed hearing within normal limits as the rationale.  Pursuant to December 2013 and February 2015 Board remands, in April 2015, the same VA examiner issued an addendum etiological opinion, in which she stated the Veteran’s claimed bilateral hearing loss was less likely than not caused by or a result of an event in military service based on the exit audiometric exam within normal limits with no hearing loss at all noted at separation from military service; therefore making it less likely than not that any hearing loss was due to acoustic trauma while the Veteran was in military service. This same examiner issued similar opinions in June 2015 and August 2015, stating the Veteran’s bilateral hearing loss was less likely than not caused by or a result of an event in military service based on “no hearing loss present at separation audiometric exam with hearing within normal limits,” making it less likely than not that hearing loss was due to acoustic trauma while serving in the military. However, the April 2012, April 2015, June 2015, and August 2015 VA opinions all failed to provide a rationale addressing why normal hearing at separation made it unlikely for the Veteran’s hearing loss to be caused by in-service noise exposure, including why there could not be a delayed onset due to such exposure. Absent such rationale, the Board finds these opinions inadequate and has not relied on them. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that the probative value of medical opinions come from their reasoning, and therefore they are not entitled to any weight if they contain only data and conclusions). In February 2014, the Veteran submitted a private audiogram. The Board notes, that the audio exam does not utilize the VA standard Maryland CNC speech recognition testing, and as such, cannot be used for VA rating purposes. However, even if it adhered to the Maryland CNC standard and we recognized the audiogram, it does not include any statement favorably linking the audiometric results to the Veteran’s military service, which the Board notes, gives it no probative value. Pursuant to the March 2016 Board Remand, in March 2017, a separate VA examiner reviewed the file and opined that the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran’s current bilateral hearing loss is less than likely caused by or a result of an event in military service since there was no hearing loss or significant shift in hearing from enlistment to separation. She reasoned that it would seem likely that his current hearing loss would be caused by something other than military noise exposure, such as occupational noise, recreational noise, and/or progressive hearing loss secondary to the normal aging process (presbycusis). As such, there is no medical opinion linking the Veteran’s hearing loss to his service. The Board gives the March 2017 VA examiner’s opinion high probative value as it is based on an accurate review of the Veteran’s medical history, discusses the relevant facts, and gives a well-supported rationale while providing alternate etiologies. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“most of the probative value of a medical opinion comes from its reasoning”). As opposed to the prior opinions, which merely stated there was no relationship to service as hearing was normal at separation, the 2017 VA examiner discussed several medical studies concerning delayed onset of hearing loss and provided alternative etiologies for the Veteran’s hearing loss. The Board considered the statement submitted in September 2018 by the Veteran where he asserts that he first noticed difficulty in hearing while stationed in Korea standing next to the firing hub inside an M-76 tank. He states he wore no hearing protection, a round was fired, and that his hearing returned little by little over the next 2-3 days. See September 2018 Statement in Support of Claim. However, as noted supra, the Veteran denied any complaints of hearing loss and his audiology exam at separation was normal. See February 1962 Report of Medical History. Regardless, as a layperson, the Veteran is competent to report a subjective feeling of decreased hearing acuity, but he is not competent to opine that his hearing loss was caused by in-service noise exposure, which is a complex medical question that requires the opinion of a medical professional. Indeed, this is particular true considering his hearing loss first manifested decades after his release from active service. Therefore, the Board finds that the Veteran’s statements cannot be accepted as competent evidence to sufficiently support his contention that his hearing loss was caused by military noise exposure.  For the reasons stated above and as there is no competent, credible medical nexus opinion to support service connection, the Board finds service connection is not warranted on any basis. In reaching this conclusion, 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. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mireya Martinez 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.