Citation Nr: 21061907 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 18-45 107 DATE: October 5, 2021 ORDER Entitlement to service connection for hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's hearing loss is related to his service, any incident of service or manifested within one year of service. CONCLUSION OF LAW The criteria are not met for service connection for bilateral hearing loss. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty rom November 1967 to June 1969. This appeal is from a December 2016 rating decision. In June 2021, the Board remanded this claim for additional development. On remand, an updated VA examination was obtained, which the Board finds responsive to the remand request. The Board further notes that the Veteran has not raised any issue with the examination or the resulting opinion. 1. The claim of entitlement to service connection for hearing loss is denied. Service connection is granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as other organic diseases of the nervous system, including sensorineural hearing loss, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from 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. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For VA purposes, 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, 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. When audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a disability for VA purposes at that time, he or she may nevertheless establish service connection for a current hearing disability with evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The threshold for normal hearing is from 0 to 20 decibels. Id., at 157. A threshold shift of 15 decibels or more at any single frequency 1000, 2000, 3000, or 4000 Hertz is considered a significant shift. Id., at 164. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." When the evidence for and against the claim is in equipoise, by law, the Board must resolve all reasonable doubt in favor of the appellant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. After review of the evidence, the Board finds the preponderance of the evidence weighs against the claim, and service connection is not warranted. The Veteran contends that his hearing loss is related to his in-service noise exposure. He asserts in the November 2017 notice of disagreement (NOD) that his hearing loss is associated with exposure to loud weapons fire in service, including rifles, machine guns and howitzers. He stated he never wore hearing protection, was involved in combat in Vietnam and had no exposure to loud noise following service, as he worked for a fertilizer company and at a golf course. He reports the only hazardous noise exposure in his life was during service. The Veteran's service personnel records (SPRs) show he was assigned to an artillery unit with service in Vietnam. As such, the evidence establishes that the Veteran was exposed to hazardous noise during service based on his military occupational specialty (MOS). The evidence of record also confirms current bilateral hearing loss for VA purposes. See 38 C.F.R. § 3.385. Therefore, the issue before the Board is whether the current hearing loss is etiologically related to service. Neither the August 1967 entrance examination nor the June 1969 separation examination show whether hearing tests were conducted in ASA or ISO-ANSI standard. VA policy requires that when the standard is unknown in tests conducted from January 1, 1967, to December 31, 1970, then the results must be considered under both standards. The August 1967 examination shows the following results, in decibels, with those initially recorded assumed to be ASA and the ISO-ANSI conversion in parentheses: HERTZ Aug. 1967 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) -5 (5) / 5 (10) LEFT -5 (10) -10 (0) -5 (5) / 0 (5) The June 1969 examination shows the following, with the initially recorded results assumed to be ASA and the ISO-ANSI conversion of those results in parenthesis: HERTZ Jun. 1969 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) / 0 (5) LEFT 0 (15) 0 (10) 5 (15) / 0 (5) These results do not correspond to hearing loss for VA purposes during service. Indeed, the STRs do not show complaints or diagnoses. The Veteran was afforded a June 2018 VA examination in which the examiner found bilateral hearing loss present. 38 C.F.R. § 3.385. He opined the Veteran's hearing loss is not related to service. He indicated a comparison of the Veteran's entry and separation examinations reveals stable hearing with no significant threshold shift. The examiner also cited an Institute of Medicine Study (IOM) (2006) which supports that there is insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after such exposure. The examiner noted the IOM panel concluded that based on their current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss is "unlikely." Thus, he concluded the Veteran's current hearing loss was not caused by his in-service noise exposure and it has a post-service etiology. An additional opinion was obtained in July 2021 from an otolaryngologist. That examiner opined against a relationship to service. He indicated the Veteran currently has mild to moderate right ear hearing loss and mild left ear hearing loss. He explained that the risk of developing hearing loss is based on the intensity of the noise and the duration of the exposure. He continued that the audiogram is the most sensitive test available to evaluate for hearing loss. With regard to hearing loss, noise that is sufficient to cause loss will shear off the outer hair cells in the inner ear and this will show up as a 15 decibel or greater shift in the hearing at a specific frequency with the higher frequencies being the most sensitive to loss. The farther in distance one gets away from the noise exposure without experiencing hearing loss the less likely that exposure will lead to hearing loss. Further, the examiner noted that it was accepted the Veteran was exposed to significant noise. But, in evaluating his audiograms, and converting the standards to determine the most beneficial to the Veteran, the examiner indicated there were no shifts in hearing at any of the frequencies that were significant (that is, that were 15 decibels or more). The examiner explained that the absence of such a shift is a significant finding as it indicates there was not sufficient noise exposure to cause hearing loss in this case. The examiner indicated there have been studies conducted in the last 15 years that indicate a possibility for a delayed onset hearing loss: These studies provided significant noise to various[ly] aged mice. They then sacrificed those animals and compared the cochlea to aged-matched controls. Mice who were exposed at the equivalent human age of adolescence showed greater degradation of the cochlea. But this is an indirect measure of hearing as the cochlea has redundancy and even with some loss, hearing can remain normal. Furthermore, the animals that showed this loss would be younger than military-aged humans.... Lastly, these findings have not been shown to occur in humans and as such, are not considered an accepted position. The accepted position based on the entirety of the literature is that noise sufficient to cause hearing loss will have the hearing loss manifest in close proximity to that noise. In this case, the examiner noted the veteran separated from service 50 years ago and, currently, only has mild and mild to moderate hearing loss. He noted there were no significant shifts in any threshold while in the service. He opined that, based on his explanation, it is less likely than not that the Veteran's hearing loss is related to military service. The Board finds this opinion probative. It is well-reasoned and obviously based on a review of the record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds that it outweighs the Veteran's statements in favor of service connection, as he has not been shown to have the training or expertise to competently opine on the cause of his hearing loss. Indeed, the VA examiner investigated his theory and found it less likely. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). There are no competent opinions which relate his hearing loss to service. The Board additionally reiterates that the Veteran does not contend that he had hearing loss during service or within one year of service, but rather that his current hearing loss is due to in-service acoustic trauma. 38 C.F.R. §§ 3.307, 3.309. Accordingly, the preponderance of the evidence weighs against this claim, and it must be denied. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Gibson 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.