Citation Nr: 21062394 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 10-15 753 DATE: October 7, 2021 ORDER Service connection for a left ear hearing loss disability is denied. FINDING OF FACT The Veteran's current left ear hearing loss disability did not have its onset during service and was not otherwise related to any in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a left ear hearing loss disability have not all been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1977 to July 1982. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2008 Regional Office (RO) rating decision. In that rating decision, the RO, inter alia, reconsidered a June 1993 RO rating decision denial of service connection for service connection for bilateral hearing loss because additional relevant service treatment records were added to the claims file. Those records were in existence at the time of the June 1993 rating decision, but, they had not yet been associated with the file. Hence, reconsideration of the claim was warranted, but the claim for bilateral hearing loss remained denied, and the Veteran timely appealed that determination. In a July 2016 Board video conference hearing, the Veteran provided testimony before a Veterans Law Judge (VLJ) who is no longer employed by the Board. The Veteran was offered another opportunity to appear for hearing before a different VLJ and declined to respond. A transcript of the July 2016 hearing is associated with the claims file. The Board previously remanded this case for additional development in December 2016. In an April 2018 decision, the Board bifurcated the issue of service connection for bilateral hearing loss and denied service connection for a right ear hearing loss disability because the audiology findings showed that the Veteran did not have a hearing loss disability for VA purposes in the right ear. The Board remanded the issue of service connection for a left ear hearing loss disability as well as a separate issue of service connection for left ear otitis externa for additional development. These claims were remanded again in December 2019. In a September 2020 rating decision, service connection for left ear otitis externa was granted, and as such, it is no longer on appeal to the Board. Finally, in March 2021, the Board remanded the remaining issue on appeal of service connection for a left ear hearing loss disability for additional development of the record, to include directing the RO to obtain all outstanding treatment records and SSA records pertaining to the Veteran's left ear hearing loss, as well as an addendum opinion from the February 2020 VA examiner, addressing delayed onset hearing loss following noise exposure. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310. 1. Entitlement to service connection for a left ear hearing loss disability The Veteran contends that her left ear hearing loss is related to noise exposure during active service. In March 2021, the Board noted that with the exception of the December 2015 VA examination, VA audiological examinations in July 2019 and February 2020 show that the Veteran did not meet the criteria for left ear hearing loss disability for VA purposes. However, upon VA examination in December 2015, left ear hearing of revealed a puretone threshold of 45 decibels at 2000 Hertz with a diagnosis of conductive left ear hearing loss. Accordingly, there is audiological evidence of a left ear hearing loss for VA purposes during the pendency of the appeal period. Thus, the requirement of a current disability has been met in this case. A hearing loss disability is defined for VA compensation purposes based on the testing results of puretone decibel thresholds at various frequencies and speech recognition testing based on the Maryland CNC word list. The testing is conducted at an authorized audiological evaluation in accordance with 38 C.F.R. § 3.385. For 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz for one ear are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. Review of available STRs indicate that the Veteran's June 1976 entrance examination and the September 1980 re-enlistment examination revealed a normal clinical evaluation of the ears. STRs from May 1981 reflect complaints of chemical burns to the left temporal region and left ear areas; scabs, possible infection, and drainage were noted of the left ear. The Veteran's July 1982 separation examination revealed a normal clinical evaluation of the ears. A January 1993 VA medical record reflects the Veteran's complaints of pain in her ear with possible external otitis and referral to the ENT clinic. VA medical records reflect a history of otitis media from November 1992 to January 1993. In April 1993, the Veteran underwent a VA audiological examination and a VA audio-ear disease examination. The Veteran complained of hearing loss and pain in the left ear with watery drainage, reporting a history of ear infections during service. The examination reports indicate hearing within normal limits and a diagnosis of otitis externa left ear. In December 2015, the Veteran underwent a VA examination for hearing loss. The examiner found that the Veteran's hearing was within normal limits. At the same time, the examiner also found that the Veteran had left ear conductive hearing loss. In a May 2017 VA addendum opinion, the December 2015 VA audiologist stated that there is no hearing loss due to noise exposure. She stated that bone conduction thresholds obtained bilaterally were within the range of normal hearing, thus reflecting typical cochlear function. The examiner stated that she cannot opine if ear infections are service-related, as it is out of the scope of practice for an audiologist to diagnose ear infection. The examiner stated that she could not opine if hearing loss is due to a service-related ear condition until that ear condition has been defined by a physician as related to service. She stated that after the ear condition has been diagnosed and rated as due to service, then an audiologist can provide an opinion. In the July 2016 Board hearing, the Veteran testified that she was living on Guantanamo Bay, Cuba, and that planes would take off all night. She stated that her ears would throb. She stated that her last hearing test was a couple of weeks prior to the Board hearing. In a June 2017 VA examination report for ear conditions, the examiner stated that the Veteran has never had a diagnosis of an ear condition. The examiner found that the left ear hearing loss was not related to service and that the Veteran's personnel position during service showed that she was not exposed to hazardous noise. However, the Board previously determined that an addendum opinion was needed to address the Veteran's claimed in-service ear infection, the May 1981 chemical burn to her left ear, and whether the Veteran's current left ear hearing loss is a residual of any ear disease related to the in-service events. Accordingly, the Veteran was afforded a July 2019 VA examination; however, in December 2019, the Board determined that the examination was in adequate. The July 2019 VA examiner found normal hearing in the left ear and that the left ear hearing loss and left ear otitis externa were not related to service. The examiner failed to address any prior VA examinations, failed to consider all the relevant evidence of record, and did not consider medical records which showed a diagnosis of hearing problems, decreased hearing in the left ear, ear infections, an assessment of external otitis with left ear canal obliteration, a diagnosis of otitis externa, and a diagnosis of otitis media. Accordingly, the Board determined that a new VA examination was needed. In a February 2020 hearing loss and tinnitus disability benefits questionnaire (DBQ), the examiner indicated normal left ear hearing. The examiner opined that the Veteran's left ear hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner's rationale was that the Veteran has normal hearing in the left ear, and that she denied exposure to loud noise from work or recreational since her last test dated July 12, 2019. The Veteran denied ear pain, drainage, or fullness. The examiner noted that review of STRs shows that audiograms dated June 24, 1976, September 30, 1980, and July 22, 1982 show normal hearing bilaterally with no significant shifts. The examiner noted that a March 3, 2010 audiogram shows normal hearing bilaterally, audiogram on December 5, 2015 shows conductive hearing loss in the less ear, and July 12, 2019 and February 10, 2020 audiograms show normal hearing bilaterally. The examiner stated that conductive hearing loss in the left ear is less likely than not caused by or a result of military service. The Veteran had normal hearing from 1976 to 1982 with no significant shifts in hearing. The examiner stated that the Veteran reported testimony, at one time, of noise exposure from living close to a runway during service; however, there was no shift in hearing or hearing loss documented during the service and therefore, there was no acoustic trauma. Per the March 2021 Board remand, a VA addendum opinion was obtained in April 2021. The examiner noted that audiogram dated December 5, 2015 showed conductive hearing loss in the left ear. The examiner opined that the conductive hearing loss in the left ear is less likely than not caused by or a result of military service. The examiner stated that noise exposure does not cause conductive hearing loss, and that there is no evidence showing that the Veteran's hearing loss is related to her military service. The Veteran had normal hearing upon the July 22, 1982 separation examination. Entrance and separation examinations dated September 30, 1980 and July 22, 1982 show normal hearing bilaterally. Audiograms dated March 10, 2010, February 10, 2020, and April 22, 2021 showed normal hearing bilaterally. In a May 2021 VA addendum opinion, the examiner stated that hearing tests completed on February 10, 2020 and February 22, 2021 show normal hearing bilaterally. The examiner stated that there are audiograms dated September 30, 1980 and July 22, 1982 showing normal hearing bilaterally with no significant threshold shift, and there is no research to support delayed onset hearing due to military noise exposure. Additionally, current hearing is normal bilaterally. The past hearing loss in the left ear during the December 2015 test was a conductive hearing loss not a type consistent with noise exposure. Therefore, the examiner opined that the left ear hearing is less likely as not caused by or a result of military noise exposure. Records received from the Social Security Administration (SSA) do not indicate any hearing disabilities. The physical residual functional capacity assessment shows no established communicative limitations. The February 2020 VA examiner's opinion, in conjunction with the April 2021 and May 2021 VA addendums, are highly probative as to whether the Veteran's current left ear hearing loss disability is related to her active service. The examiner was fully aware of the Veteran's military noise exposure and any history of hearing loss, as noted in the record, and based the opinion provided on the evidence and examination of the Veteran. Based on the examiner's opinion, the Board cannot make a finding that the Veteran's hearing loss is at least as likely as not related to her military service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To the extent the Veteran has asserted that she has had hearing problems since service, she is competent to report observable symptoms such as a decline in hearing acuity. However, her statements are not persuasive, as they are not supported by objective medical findings. STRs do not indicate that the Veteran reported (or that she suffered from) hearing problems during service, and the evidence of record shows that the Veteran did not begin reporting any ear-related complaints until 1992, about 10 years after active service. The passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Even though the Veteran was exposed to acoustic trauma in service, her statements attributing her current hearing loss to her in-service noise exposure are not competent. While hearing loss can be linked to acoustic trauma, the Veteran is not competent to opine as to whether any decrease in hearing acuity is a result of that acoustic trauma. In this case, in particular, VA examinations specifically indicate that the conductive hearing loss noted much earlier, is not noise induced. Moreover, the first medical evidence of record reflecting any complaints of hearing loss after service is not until 1992, about 10 years after her separation from service. While the Veteran has stated her belief that her hearing loss is caused by acoustic trauma from noise exposure in service, including from airplanes, the question of an actual association between her hearing loss, diagnosed many years after her separation from service, and her military noise exposure is a medical question too complex for lay person to competently address. See 38 C.F.R. § 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has not demonstrated expertise in this area. Given the above, the most probative evidence of record shows that the Veteran's left ear hearing loss disability is not due to an incident during service and did not begin in service or manifest to a compensable degree within a year of separation from active service. Specifically, the February 2020 examination report and resulting opinion, as well as the addendum opinions, regarding the etiology of the Veteran's left ear hearing loss disability weigh heavily against her claim. (Continued on the next page) Based on the foregoing, the preponderance of evidence is against the Veteran's claim of entitlement to service connection for left ear hearing loss. Consequently, the benefit of the doubt doctrine does not apply, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Labi, 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.