Citation Nr: 21004991 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-19 074 DATE: January 28, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. FINDING OF FACT The weight of the competent and credible evidence is against finding that the Veteran’s bilateral hearing loss disability manifested in service or within one year of service; and is not etiologically caused by an in-service injury, event or disease. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from June 1965 to May 1967. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Previously, the Veteran’s claim was before the Board in October 2018 and most recently in August 2020 and was remanded for additional development, which has been completed. As such the Board finds that the prior remand directives have been substantially complied with and the claim is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110. To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present 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” - the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 Fed. Cir. (2004). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. In addition to the legal authority, the Board notes that the threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Hearing loss disability claims are governed by 38 C.F.R. § § 3.385. This regulation provides hearing loss is 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. 38 C.F.R. § § 3.385. Alternatively, a hearing loss disability can be established by auditory thresholds for at least three of those frequencies at 26 decibels or greater or by speech recognition scores under the Maryland CNC Test at less than 94 percent. 38 C.F.R. § § 3.385 Entitlement to service connection for a bilateral hearing loss disability The Veteran contends that his current hearing loss and associated symptomology are related to exposure to ongoing noise and that his hearing loss manifested in service. Further statements from the Veteran’s sister contend that soon after service he had difficulty hearing in conversations which has worsened over time. The Veteran and lay statements are competent to describe his current symptoms, in-service events, and the occurrence of ongoing symptoms, and to this extent, these statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The question for the Board is whether the Veteran has a diagnosis of a bilateral hearing loss disability that began during service, manifested during the applicable presumptive period or whether continuity of symptomology has existed since service, or is at least as likely as not caused by an in service, injury or disease. The Veteran has a diagnosis of a bilateral hearing loss. The Veteran’s service treatment records (STRs) and service personnel records have been associated with the claims file. The Veteran’s DD 214 notes his military occupational specialty (MOS) was a heavy vehicle driver, and the Veteran earned the marksman (rifle) badge. At entrance on the audiological evaluation in June 1965, pure tone thresholds, in decibels were as follows: June 1965 HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) x 15 (20) LEFT 10 (25) 5 (15) 0 (10) x 20 (25) Then at separation on the authorized audiological evaluation in May 1967, pure tone thresholds, in decibels were as follows: May 1967 HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 5 (15) 5 (15) X 10(15) LEFT 0 (15) 5 (15) 5 (15) X 5 (10) Because it is unclear whether such thresholds were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (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. As it related 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 standards for evaluating hearing loss were 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 record data. The Veteran’s in-service audiograms have been converted to ISO-ANSI standard above and these values are reflected above in parenthesis. Further STRs note at separation in May 1967 on the report of medical examination clinical evaluation of the ears was normal. At separation in May 1967 on report of medical history the Veteran denied hearing loss, running ears and ear trouble. In light of the Veteran’s consistent statements and the evidence of record regarding his duties as a heavy vehicle driver including in-service noise exposure from rifle fire, grenades and heavy vehicles, there is credible evidence indicating an in-service injury. As such the Board concedes in-service noise exposure. The question for the Board is whether the Veteran’s bilateral hearing loss began during service or is related to service. The Veteran was afforded a VA examination in October 2015. On the audiological evaluation in October 2015, pure tone thresholds, in decibels were as follows: October 2015 HERTZ 500 1000 2000 3000 4000 Avg RIGHT 20 35 55 65 65 55 LEFT 80 100 100 90 95 96 Speech audiometry revealed speech recognition ability was 78 percent in the right ear. The examiner noted that the word discrimination score was not available for the left ear as use of the word recognition score (Maryland CNC word list) is not appropriate for the Veteran because of language difficulties, cognitive problems, or inconsistent word recognition scores. The examiner noted bilateral sensorineural hearing loss. The examiner found no permanent positive threshold shifts in-service. The examiner found that Veteran’s hearing remained unchanged bilaterally from 500 Hertz (Hz) to 2000 Hz and 4000 Hz from enlistment to separation in the Veteran’s right ear. In the Veteran’s left ear, the examiner noted that the Veteran’s hearing remained unchanged from 500 Hz to 2000 Hz from enlistment to separation and his hearing improved from enlistment to separation at 4000 Hz. The examiner noted that the Veteran’s hearing loss impacts his ordinary conditions of daily life in that he has difficulty hearing in social settings and such increases with background noise. Post military the Veteran reported that he worked as a heavy equipment operator but with hearing protection. The Veteran reported in 2012 he experienced a sudden hearing loss in his left ear which has not improved. The examiner noted that the Veteran reported high intensity noise exposure in-service from M16 rifle fire, hand grenades, simulated explosions and artillery. Further the Veteran reports no hearing protection and that in-service he remembers his hearing being muffled and his ears ringing during the combat course. The examiner found that it is less likely than not that the Veteran’s right and left ear hearing loss was caused by or a result of an event in-service. Then the Veteran was afforded a supplemental VA opinion in November 2019. The examiner noted that the Veteran’s bilateral hearing loss is less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted a review of the Veteran’s MOS and his and the associated lay statements noting hazardous noise exposure in-service. Further, the examiner noted that audiometric records showed no hearing loss or significant changes in hearing thresholds greater than normal measurement variability during service. The exception to this is in the Veteran’s left ear at 4000 Hz his hearing actually improved from enlistment to separation, not a decrease. Further, the examiner noted no record of complaints or treatment of hearing loss in-service. The examiner noted an extensive review of the medical literature and the Institute of Medicine (IOM) Reported entitled “Noise and Military Service: Implication for Hearing Loss and Tinnitus” (2006) reports which states that there was an insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after such noise exposure. The IOM panel concluded that based on their current understanding of auditory physiology a prolonged delay in the onset of noise-induced hearing was unlikely. As such based on the objective evidence (audiograms) the examiner found that there is no evidence on which to conclude the Veteran’s current hearing loss was caused by or a result of his service, to include in-service noise exposure. Then the Veteran was afforded a VA examination in November 2020. The Veteran reported noise exposure from gun ranges, grenades range and trucks/vehicles. On the authorized audiological evaluation in November 2020, pure tone thresholds, in decibels were as follows: November 2020 HERTZ 500 1000 2000 3000 4000 Avg RIGHT 55 70 80 95 105 87.5 LEFT 8085 105 105+ 105 105+ 105 Word discrimination scores in the right ear was 18 percent. In the left ear a word discrimination score was not appropriate for the Veteran. The examiner noted bilateral sensorineural hearing loss. In the right ear no, permanent positive thresholds shift greater than normal measurement variability were noted in-service. The examiner noted in the left ear there also was no permeant positive threshold shift greater than normal measurement variability in-service. The examiner found that it is less likely than not that the Veteran right and left ear hearing loss was caused by or a result of an event in-service. The examiner noted the Veteran’s service and his reports of military noise exposure from gun ranges, grenades ranges and trucks/vehicles. At entrance in June 1965 (after conversion factors were applied) the Veteran’s hearing was within normal limits. At his separation exam in May 1967 (after conversion factors were applied) shows the Veteran’s hearing to within normal limits bilaterally. The examiner noted that the Veteran’s hearing examinations were converted from ASA standards to ISO-ANSI standards based on VBA guidance for exams dated October 1967 or earlier. The examiner noted a thorough review of the prior opinions and the medical literature submitted by the Veteran in July 2020. The examiner noted that there were no threshold shifts for Department of Defense (DOD) purposes noted from enlistment to separation. Further, as referenced above the IOM (2006) report stated that there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The IOM panel concluded that based on their current understanding of auditory physiology a prolonged delay in the onset of noise induced hearing loss was “unlikely”. The examiner noted that in a review of recent studies, including with rodents some investigators have speculated that a delayed onset of neural, central or cochlear changes may occur as a result of noise exposure, contending that noise can cause cochlear degeneration without pure tone threshold shifts. Some have called this “hidden hearing loss” Some speculate that a similar pathology should cause poor speech recognition in noise exposed people whose pure tone thresholds are unchanged. However, the examiner noted that there exist genetic and physiologic differences between humans and rodents. Some of such was observed among the varying inbred strains of rodents used in research. Further, these studies do not overturn the conclusions of the IOM (2006) report. The examiner noted that the IOM report currently remains the most comprehensive review regarding effects of noise exposure in our population of Veterans. Further, the IOM report states, “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 ones’ lifetime, long after the cessation of that noise exposure. Although the designated studies to address the issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur.” Further, human subject research has produced mostly negative results. See The Hearing Journal Vol 71, No. 2, 2018 p. 34. The examiner noted that the available animal study research is speculative and does not provide conclusive evidence that these studies definitely apply to humans, and there is no objective evidence that this Veteran experienced any neurodegeneration/noise induced damage in-service. Threshold sensitivity is the gold standard for quantifying noise damage in humans, as the audiogram is the objective standard for noise injury. Because there is no objective evidence that hearing loss or significant threshold changes occurring during service there was no objectively verifiable noise injury in-service and there is no basis on which to conclude that hearing loss was caused by military noise exposure. The Veteran’s hearing loss was within normal limits bilaterally with no significant threshold shifts at separation and there is no record of complaints or treatment of the claimed condition in service records. Therefore, the examiner found that even in consideration of the Veteran’s and associated lay statements and submitted medical literature of record it is less likely than not that the Veteran’s current hearing loss is due to or the result of in-service noise exposure. The examiner noted that the Veteran’s hearing loss impacts his ordinary conditions of daily life in that he has significant and substantial difficulty in everyday communication situations. As to presumptive service connection the examiner noted that it is less likely than not that the Veteran’s hearing loss began during service, manifested within the presumptive period was not noted during service or with the same symptomology since service. Then, a private opinion from an audiologist from November 2020 has been associated with the claims file. The opinion noted that the Veteran reported bilateral hearing loss and tinnitus which he associated with noise exposure during military service. The Veteran reported use of a hearing aid in his right ear. The opinion noted post service the Veteran worked as a heavy equipment operator for more than 20 years using hearing protection, and some recreation noise exposure to noise deer hunting. The opinion notes the Veteran’s in-service noise exposure and his reports of exposure to loud noise from rifles on the ranges and hand grenades without the use of hearing protection. The opinion notes that the audiometric pattern exhibited in his right ear is consistent with his history of noise exposure. According to American Hearing Research Foundation scientists a May 2011 article from The Journal of Neuroscience notes that exposure to loud noise may cause irreversible damage to the inner ear structures of the cochlea that may not be immediately evident, but that results in accelerated hearing loss beyond a normal progression over the following decades of life. The opinion noted that an examination of the Veteran indicates asymmetrical sensorineural hearing loss. The opinion notes that the Veteran’s exposure to excessive noise during his military service is more likely than not a contributing factor to his hearing loss and tinnitus. The Board notes that this medical literature the private opinion references is one of the articles the Veteran submitted in July 2020 and was considered by the November 2020 VA examiner. The Board finds this private opinion as entitled to less probative weight, and the opinion failed to provide a thorough and reasoned rationale for the conclusions reached, and fully address the entirety of the evidence of record. The Board has considered the private opinion but finds such is entitled to less probative weight. VA and private treatment records have been associated with the claims file. A review of these records shows that the Veteran’s earliest self-reporting of hearing loss symptomology began in 2012. He denied hearing loss in his discharge physical examination history questionnaire. VA treatment records note that the Veteran has been seen for ongoing follow up relating to his hearing loss. These treatment records do not contradict the VA examination and are absent indications between the Veteran’s current hearing loss disability and an in-service disease or injury. The Veteran and his representative submitted medical literature in July 2020, and statements in July 2020 contending that service connection is warranted. The Veteran’s representative has generally contended that the VA examinations failed to consider the entirety of the evidence of record, and his in-service noise exposure. Further the Veteran’s representative contends that use and reference to the IOM (2006) review was inappropriate. The Board notes that the representative is not a competent authority to determine what information may be found probative to a competent examiner. The Board has considered the Veteran’s and his representative contentions however, VA benefits may not be granted based on speculative opinions. Rather, opinions must be made by competent professionals and be based on a rationale that is clear to the Board. The Veteran’s representative is not competent to provide a medical opinion. Furthermore, even if the representative was found to be a competent source of opinion, evidence favorable to a veteran’s claim that does little more than suggest a possibility that his illnesses might have been caused by service or a service connected disability is insufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). Lastly, the benefit of the doubt rule is for application when the evidence is in equipoise, which occurs only when there is an approximate balance between the positive and negative evidence. 38 C.F.R. § 3.102. That evidence must be both competent and credible. Here, there is no such balance of evidence. After consideration of all the evidence of record the Board finds that the evidence is against finding that service connection for the Veteran’s bilateral hearing loss disability is warranted. The Board concludes that service connection is not warranted on a direct basis as the Veteran’s current hearing loss was not caused by service. The Veteran’s reports of the onset of his hearing loss in-service warrant low credible and probative weight as they are not consistent with the STRs at discharge from active duty when clinical evaluation of the ears was normal, and his audiogram was within normal limits. While the Veteran and associated lay statements report that his current hearing loss is related to service, the record does not reflect that he or the associated lay statements have the requisite training or expertise to offer a medical opinion linking a current disability to service decades earlier and as such the Veteran and lay statements are not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board finds that the medical evidence is more probative and credible than the lay opinions of record. The competent medical evidence of record including specifically the November 2020 VA examination is entitled to significant probative weight. The examiner found that it is less likely than not that the Veteran right and left ear hearing loss was caused by or a result of an event in-service. The examiner noted the Veteran’s service and his reports of military noise exposure from gun ranges, grenades ranges and trucks/vehicles. At entrance in June 1965 (after conversion factors were applied) the Veteran’s hearing was within normal limits. At his separation exam in May 1967 (after conversion factors were applied) shows the Veteran’s hearing to within normal limits bilaterally. The examiner noted that the Veteran’s hearing examinations were converted from ASA standards to ISO-ANSI standards based on VBA guidance for exams dated October 1967 or earlier. The examiner noted a thorough review of the prior opinions and the medical literature submitted by the Veteran in July 2020. The examiner noted that there were no threshold shifts noted from enlistment to separation. The Institute of Medicine (2006) report stated that there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The IOM panel concludes that based on their current understanding of auditory physiology a prolonged delay in the onset of noise induced hearing loss was “unlikely.” Further, the examiner noted that a review of recent studies, including with rodents some investigators have speculated that a delayed onset of neural, central or cochlear changes may occur as a result of noise exposure, contending that noise can cause cochlear degeneration without pure tone threshold shifts. Some have called this “hidden hearing loss” Speculating that a similar pathology should cause poor speech recognition in noise exposed people whose pure tone thresholds are unchanged. However, the examiner noted that there exist genetic and physiologic differences between humans and rodents. Some of such was observed among the varying inbred strains of rodents used in research. Further, these studies do not overturn the conclusions of the IOM (2006) report. The examiner noted that the IOM currently remains the most comprehensive review regarding effects of noise exposure in our population of Veterans. The examiner noted that the available animal study research is speculative and does not provide conclusive evidence that these studies definitely apply to humans, and there is no objective evidence that this Veteran experienced any neurodegeneration/noise induced damage in-service. Threshold sensitivity is the gold standard for quantifying noise damage in humans, as the audiogram is the objective standard for noise injury. Because there is no objective evidence that hearing loss or significant threshold changes occurring during service there was no objectively verifiable noise injury in-service and there is no basis on which to conclude that hearing loss was caused by military noise exposure. The Veteran’s hearing loss was within normal limits bilaterally with no significant threshold shifts at separation and there is no record of complaints or treatment of the claimed condition in service records. Therefore, the examiner found that even in consideration of the Veteran’s and associated lay statements and submitted medical literature of record it is less likely than not that the Veteran’s current hearing loss is due to or the result of in-service noise exposure. The Board finds that this VA opinion thoroughly considered the Veteran’s and associated lay statements, reviewed the medical literature and provided a thorough and well-reasoned opinion. As such the Board finds this opinion is entitled to significant probative weight. Further, the Board has considered the Veteran’s audiogram in-service and as it is unclear whether such thresholds were recorded using ASA units or ISO-ANSI. The Board has considered the Veteran’s in-service audiograms under both standards, ASA units and ISO-ANSI units relying on the unit most favorable to the Veteran’s appeal. However, regardless as the VA examiner in November 2020 noted there is no indication that a hearing loss disability was present in service, as defined by VA. Further the Board notes that the Veteran did not have significant positive threshold shifts in service, any threshold shifts were minimal and do not indicate a hearing loss disability was present in service for VA purposes. The Board finds that direct service connection is not warranted as the Veteran’s current hearing loss is not related to service. The Board notes that the STRs note at separation in May 1967 on the report of medical examination audiological testing was within normal limits and clinical evaluation of the ears was normal. Further, at separation on the report of medical history the Veteran denied hearing loss, running ears or ear trouble. The Board has thoroughly considered the Veteran’s and the associated lay statements however, the Board gives more probative weight to the competent medical evidence. In addition, the Board has considered the November 2020 private opinion which finds such is outweighed by the medical evidence of record, specifically the November 2020 VA examination. At separation, clinical evaluation was normal, and the Veteran’s hearing was within normal limits. As such the Board finds the Veteran’s current hearing loss disability is less likely than not related to active service. As to presumptive service connection the Veteran’s bilateral hearing loss did not manifest until many years post-service. The Board concludes that while the Veteran has sensorineural hearing loss, which falls within a chronic disease under 38 U.S.C. § 1101 (3)/38 C.F.R. § 3.309(a), however such was not chronic in service nor did these manifest to a compensable degree in service or within the presumptive period, and continuity of symptomatology is not established. The Veteran’s hearing loss was not noted during service or within one year of separation. See Walker, 708 F.3d 1331. At separation on the report of medical examination in May 1967 clinical evaluation of the ears was normal. Service records do not support an onset of the Veteran’s hearing loss in active service. Based on the probative evidence of record the Board finds that the Veteran’s hearing loss did not manifest within the one-year period after service and service connection is not warranted on a presumptive basis. Private treatment records note difficulty hearing in 2012 over 40 years after his separation from service in 1967. In addition, in weighing the evidence of record the Board finds the competent and credible evidence of record is against finding continuity of symptomatology. As a result, service connection based on continuity of symptomology is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for a bilateral hearing loss disability. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.R. Kardian, 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.