Citation Nr: 21004693 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 15-04 523 DATE: January 27, 2021 ORDER Entitlement to service connection for a right ear hearing loss disability is denied. FINDING OF FACT The evidence of record does not establish a causal relationship between an in-service event and the Veteran’s right ear hearing loss disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a right ear hearing loss disability have not been met. 38 U.S.C. § 1110, 1154, 5107; 38 C.F.R. § 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from January 1967 to January 1971. This appeal comes to the Board of Veterans’ Appeals (Board) from a rating decision, dated July 2012, issued by a Department of Veterans Affairs (VA) Regional Office (RO). In its decision, the RO denied service connection for bilateral hearing loss. The Veteran timely appealed. In January 2019, the Board denied the appeal. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In February 2020, the Court granted a Joint Motion for Remand (JMR), vacating the Board’s January 2019 decision and remanding the claim for additional development. The issue was returned to the Board for adjudication and in August 2020 was remanded to obtain medical records and a new VA medical opinion. The issue has now been returned to the Board for adjudication. In an October 2020 rating decision, the RO granted service connection for left ear hearing loss with a noncompensable evaluation effective November 8, 2011. Therefore, the Board will proceed with adjudication of the Veteran’s claim for entitlement to service connection for a right ear hearing loss disability only. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (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 or aggravated during service. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for a right ear hearing loss disability The Veteran claims entitlement to service connection for a right ear hearing loss disability. Following a thorough review of the Veteran’s medical records, the Board finds that he is not entitled to an award of service connection, as no nexus exists between the Veteran’s right ear hearing loss disability and his active duty service. A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. Id. A private audiological examination received February 2012 showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 50 55 50 55 Speech audiometry revealed speech recognition ability of 84 percent in the right ear. Another private audiological examination received February 2012 showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 50 50 50 55 Speech audiometry revealed speech recognition ability of 96 percent in the right ear. The Veteran was provided a VA audiological examination in July 2012, which showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 55 60 55 60 Speech audiometry revealed speech recognition ability of 90 percent in the right ear. The Veteran was provided a private audiological examination dated in September 2020 which showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 55 65 60 60 Speech discrimination was 88 percent in the right ear. All of these audiograms’ values meet the criteria for a right ear hearing loss disability under 38 C.F.R. § 3.385. The Board finds that the Veteran has satisfied the first element of service connection, a current disability of right ear hearing loss. The Veteran’s September 2020 VA audiological examination shows the Veteran has a current diagnosis of right ear sensorineural hearing loss for VA purposes. See Audiological Examination dated September 2020. Therefore, the Board finds that the Veteran has satisfied the first prong of service connection, the existence of a current disability. 38 U.S.C. § 1131; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). With regard to the second element of service connection: evidence of an in-service disease or injury, the Veteran contends that he was exposed to hazardous noise in service. In a February 2012 lay statement the Veteran explained that in his military occupational specialty of Aircraft Mechanic, he worked around jet engines for approximately five years. At his July 2012 VA examination, the Veteran stated that he served in the Air Force from 1967-71, serving as a jet engine mechanic, working on cargo jets. He went to Vietnam from October 1971 to March 1973 as a civilian contractor working on aircraft for the Army. He worked on helicopters and small aircraft. He experienced excessive noise from being around aircraft engines. He reported hearing loss with onset about 10 years prior. See VA Examination dated July 2012. The Board finds these reports from the Veteran are competent and credible. Therefore, the Board finds that the Veteran has satisfied the second prong of service connection: evidence of an in-service injury of being exposed to jet engine noise as an aircraft mechanic. However, the third prong of service connection, the nexus element, is not established by the evidence. Presumptive service connection Certain chronic diseases, including sensorineural hearing loss, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has not asserted, and the evidence does not show, that he experienced symptoms of right ear hearing loss while in service or within one year of separation. Rather, he argues that the noise exposure in service caused his right ear hearing loss which had its onset long after separation from service. The audiological evidence in the Veteran’s service treatment records (STRs) shows that the Veteran’s right ear hearing was within normal limits throughout the duration of his service. The Veteran’s entrance examination in July 1966 reflected audiometric findings for hearing within normal limits. During his separation examination in December 1970, the Veteran continued to have normal hearing in the right ear. Additionally, when asked if he had or had ever experienced “hearing loss” in reports of medical history in the Veteran’s STRs, he answered “no.” The Veteran did not complain of or receive treatment for a right ear hearing loss disability during his time in service. Therefore, a right ear hearing loss disability for VA purposes was not shown while the Veteran was in service. During the Veteran’s entrance examination, he was provided an audiological examination. The audiometric data was recorded using the American Standards Association (ASA) units. However, the ASA are no longer the units used to record audiometric data. Instead, the International Standards Organization-American National Standards Institute (ISO-ANSI) units should be used. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows:  Hertz 250 500 1000 2000 3000 4000 6000 8000 add 15 15 10 10 10 5 10 10 As a result, the Veteran’s audiometric data from his July 1966 entrance examination have been converted from ASA to ISO-ANSI. Those values are reflected below. July 1966 (original): HERTZ 500 1000 2000 4000 RIGHT 5 0 -5 5 July 1966 (ASA to ISO-ANSI conversion): HERTZ 500 1000 2000 4000 RIGHT 20 10 5 10 These values do not meet the criteria for a right ear hearing loss disability under 38 C.F.R. § 3.385, even after conversion. The Veteran had another audiological evaluation in October 1968. Because it is unclear whether such thresholds were recorded using ASA units or ISO-ANSI units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran’s appeal. October 1968 (original): HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 5 5 October 1968 (ASA to ISO-ANSI conversion): HERTZ 500 1000 2000 3000 4000 RIGHT 30 15 15 15 10 These values do not meet the criteria for a right ear hearing loss disability under 38 C.F.R. § 3.385, even after conversion. In an October 1969 STR, the Veteran was provided another audiological examination, in which the examiner wrote, “Calibrated to 1964 ISO values.” Therefore, no conversion is necessary for these values. This examination showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 20 25 These values do not meet the criteria for a right ear hearing loss disability under 38 C.F.R. § 3.385. In an October 1970 STR, the Veteran was provided an audiological examination, in which the examiner wrote, “ISO 1964.” Therefore, no conversion is necessary for these values. The examination showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 5 These values do not meet the criteria for a right ear hearing loss disability under 38 C.F.R. § 3.385. During the Veteran’s separation examination, the Veteran was provided an audiological examination, in which the examiner wrote, “ISO 1964.” Therefore, no conversion is necessary for these values. The examination showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 10 10 15 These values do not meet the criteria for a right ear hearing loss disability under 38 C.F.R. § 3.385. Thus, a right ear hearing loss disability was not shown as chronic in service. The Veteran does not assert, and the evidence does not show, that it manifested to a compensable degree within a presumptive period. On the contrary, the Veteran’s entrance examinations, in-service audiograms, and separation examination yielded normal hearing results in the Veteran’s right ear. The Veteran denied hearing loss and trouble with his ears on separation. VA treatment records show the Veteran was not diagnosed with right ear hearing loss until 2010, nearly four decades after his separation from service and 38 years outside of the applicable presumptive period. The service connection claim for right ear hearing loss fails under 38 C.F.R. §§ 3.303(b), 3.307, and 3.309(a). Direct service connection The Veteran may still establish service connection for a right ear hearing loss disability by a preponderance of the evidence. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). With regards to whether a causal relationship exists between the Veteran’s current right ear hearing loss disability and his active duty service, VA examiners provided audiological examinations in July 2012, January 2015, and September 2020. Significantly, the September 2020 examiner provided a positive nexus opinion for the left ear because the evidence showed a documented in-service threshold shift in the left ear. As a result, service connection was granted for left ear hearing loss based on this examination. In the July 2012 examiner’s opinion, the Veteran’s hearing loss was less likely than not caused by or a result of an event in military service. The VA examiner explained: Review of Veteran’s STR’s shows enlistment physical of 21 July 66 that cites hearing as within normal limits for tones through 4khz bilaterally. His separation physical of 9 December 1970 cites normal pure tone thresholds thru 6khz bilaterally. When taking into account the calibration changes between the two tests, there is no significant shift in hearing during service. On the separation medical history, the Veteran denied the presence of hearing loss or ear problems. The Veteran self reports onset of hearing problems as about 10 years ago, well after his military duty. In January 2015, an opinion was requested to clarify audiograms after conversion from ASA to ISO and clarify thresholds from audiograms that were performed two months apart. The VA examiner explained: There were no significant threshold shifts from entrance to exit. Both audiograms indicate normal hearing and variations in patient responses can also be consistent with the human’s auditory inability to maintain a loudness reference, patient attention factors, environmental room noise and equipment issues. Therefore, minimal pure tone differences when comparing entry and exit hearing tests do not always reflect hearing loss which is the case for this Veteran. Normal hearing is normal hearing. The examiner also discussed a landmark report from the Institute of Medicine which concluded there was no scientific basis that hearing loss that occurred many years after noise exposure could be causally related to that noise exposure if hearing was normal immediately after the exposure. He noted that it was unlikely that the Veteran experienced these delayed effects. The examiner concluded: [T]he Veteran exited the military without any acoustic damage and research does not support the concept of delayed onset of hearing loss. Furthermore, by the Veteran’s own testimony in his case history interview in 2012, he reported the onset of hearing loss to be out 10 years prior to the evaluation, which is 2002. He exited the military 30 plus years prior to that date. For all of the reasons cited above, it is my opinion that it is NOT at least as likely as not that hearing loss is related to military service. In its February 2020 JMR, the Court noted that VA “failed to meet its duty to assist when it relied on an inadequate medical opinion in January 2015.” It provided, In the January 2015 medical opinion, the examiner stated that Appellant’s hearing thresholds shift did not reflect hearing loss because this hearing remained within normal limits. The entrance examination documented hearing threshold of five decibels at every level. The separation examination readings documented thresholds in the left ear of 25 decibels at 500, 1000, 2000, 3000 MHz. However, as normal hearing for medical purposes ranges from 0 to 20, the VA examiner’s conclusion that Appellant’s hearing was within normal limits is erroneous. Thereafter, the Veteran was provided a new medical opinion in September 2020. In the VA examiner’s opinion, she distinguished the right ear from the left ear and found that the Veteran’s right ear hearing loss disability was less likely than not caused by or a result of an event in military service. See VA Examination dated September 2020. The VA examiner explained: “The Veteran has a mild to moderate sensorineural hearing loss for the right ear. However, there is no threshold shift and there is a history of noise exposure following his time in the military.” The Board finds the opinion of the September 2020 VA examiner is probative, as it provides clear conclusions with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board also accepts the September 2020 examiner’s reasoning for finding a positive nexus for the left ear but a negative nexus for the right ear, based on the presence or absence of in-service threshold shifts. The Veteran has not asserted that he experienced right ear hearing loss symptoms in service. Rather, he contended that his symptoms have gradually worsened over time. He contends that, “He has difficulty hearing in crowds without the use of his hearing aids.” See VA Examination dated September 2020. Furthermore, in his July 2012 VA examination, the Veteran noted the onset of his hearing loss was 10 years prior, circa 2002, almost 30 years after his separation from service. The Board finds that the question of whether a nexus exists between the Veteran’s active duty service and his current right ear hearing loss disability is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is a medically complex issue requiring specialized medical education or knowledge. See 38 C.F.R. § 3.159(a)(1). The Veteran has not shown relevant medical training, education, or experience. Hence, the Veteran’s opinion, no matter how sincere, is not competent nexus evidence. Therefore, the Board has reviewed all medical and lay evidence, but finds there is no competent evidence of record which establishes a causal relationship between the Veteran’s right ear hearing loss disability and an in-service event. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bristor 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.