Citation Nr: 21062789 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 16-47 677 DATE: October 12, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT The evidence fails to probatively establish that the Veteran's current right ear hearing loss was incurred in or is otherwise etiologically or presumptively related to the Veteran's active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1982 to October 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a July 2019 Travel Board hearing. A copy of the hearing transcript has been associated with the Veteran's electronic claims file. In a November 2019 decision, the Board remanded a claim seeking entitlement to service connection for bilateral hearing loss for additional evidentiary development. In November 2020, the RO issued a rating decision granting entitlement to service connection for left ear hearing loss. As this represents a full grant of benefits regarding left ear hearing loss, this issue is no longer on appeal. See Grantham v. Brown, 114 F.3d 115 (Fed. Cir 1997). The Veteran's claim seeking entitlement to service connection for right ear hearing loss has returned to the Board for further appellate consideration. Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal 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. The Veteran has alleged that he experiences a current right ear hearing loss disability as a result of military noise exposure. The Veteran is already service connected for left ear hearing loss due to in-service acoustic injury. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, a veteran must show: (1) a current disability; (2) an in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred during service, the so-called "nexus" requirement. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All elements must be satisfied before service connection may be achieved. Additionally, service connection may be achieved if any applicable presumptive service connection regulations apply to the Veteran's circumstances. The current disability element of a service connection claim is not in dispute. The audiograms conducted at the February 2015 and November 2020 VA examinations showed right ear hearing loss for VA compensation purposes. See 38 C.F.R. § 3.385. In light of the above, the Veteran has proven he experienced a current disability for VA compensation purposes within the appellate period. Shedden, 381 F.3d at 1167. Regarding in-service incurrence, the Veteran's service treatment records are negative for hearing loss complaints and show normal hearing acuity in the right ear during the service entrance and exit examinations. At the September 1986 Report of Medical History completed at service discharge, the Veteran subjectively denied any ear trouble or hearing loss. The Veteran's service treatment records state that the Veteran was provided earplugs, and double hearing protection was utilized during service. See May 1983 reference audiogram. At the July 2019 Board hearing, the Veteran further testified that he was provided earplugs and cuffs that were placed over the ears as hearing protection during service. He stated that this earing protection was used on a regular basis, although it did not completely drown out the noise, and the earplugs would occasionally fall out of the ears. At the July 2019 Board hearing, the Veteran testified that he was exposed to loud noise on a consistent basis during service due to his military occupational specialty (MOS) as an electronic warfare systems specialist, which placed him in close proximity to the aircraft flight line and loud machinery. The Veteran submitted a September 2010 VA memorandum listing various MOSs and the probability of in-service hazardous noise exposure. In this memorandum, electronic warfare systems specialist was listed as having a high probability of in-service noise exposure. While the evidence does not demonstrate any in-service hearing issues, the Veteran was exposed to excessive noise during his active duty service. Consequently, the in-service incurrence element of a service connection claim has been satisfied. Shedden, 381 F.3d at 1167. Now the Board turns to the dispositive issue of medical nexus. As explained in the November 2019 Board decision, the medical nexus opinion issued by the February 2015 VA examiner was inadequate for adjudicative purposes. The Board remanded the matter for a new VA examination and medical nexus opinion, which was procured in November 2020. The VA examiner conducted an in-person examination, to include audiogram and speech discrimination testing. Following this in-person assessment and a complete review of the electronic claims file, the November 2020 VA examiner issued a negative nexus opinion. Contrary to the Veteran's now service-connected left ear hearing loss, the VA examiner explained that the Veteran's right ear hearing was normal upon service entrance and separation. The VA examiner explained that there is no evidence, in human studies, to suggest that hearing loss due to noise will continue to worsen once noise exposure has ceased. The VA examiner explained there was no change in the Veteran's right ear hearing thresholds during his time in service, which indicates that the Veteran's right ear hearing was not impacted by acoustic trauma during his time in service. The VA examiner explained that since no human studies suggest the possibility of delayed onset hearing loss following a remote history of excessive noise exposure, and there was no evidence of in-service hearing deficits due to noise exposure, it was less likely than not that the Veteran's current right ear hearing loss was due to his conceded military noise exposure. The Board finds the November 2020 VA examination to be highly probative on the issue of medical nexus. The VA examiner appropriately considered the Veteran's in-service audiograms and noise exposure, but issued a negative opinion that was fully articulated and supported by a reasoned explanation based on the examiner's expertise, record evidence, and available medical principles. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). The record contains a private medical nexus opinion issued by Dr. SF in April 2015. In the history section of Dr. SF's records, he noted that the Veteran served in the military and worked on the flight line. The assessment section of these records diagnosed the Veteran with "mild to moderate sensorineural hearing loss...could be related to noise exposure." It is unclear whether the noise exposure Dr. SF was referring to was the Veteran's in-service noise exposure, as opposed to post-service noise exposure, and this ambiguity limits the probative value of the medical opinion. Additionally, the opinion was conclusory, without a supporting rationale, and was stated in speculative terms, thereby rendering it void of probative value. See Bloom v. West, 12 Vet. App. 185, 187 (1999) ("By using the term 'could,' without supporting clinical data or other rationale, [the expert's] opinion simply is too speculative to provide the degree of certainty for medical nexus evidence."); see Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a mere conclusion statement is insufficient to allow the Board to make an informed decision as to the weight to be assigned to the medical statement). As such, the medical opinion of Dr. SF is not probative, and it is afforded no evidentiary weight in this determination. In the August 2021 appellate brief, the Veteran's representative acknowledged that the Veteran was service-connected for left ear hearing loss based on in-service noise exposure, and argued that service connection for right ear hearing loss was in order because "[t]he right ear was attached to [the Veteran's] head just like his left ear when he was exposed to acoustic trauma during service." However, this argument fails to afford due consideration to the service records showing that the Veteran suffered an in-service left ear hearing injury, as documented by the 15-decibel increase in thresholds at 4000 Hertz in the left ear from time of entrance to time of separation, and as referenced by the November 2020 VA examiner. A similar significant threshold shift was not identified in the Veteran's right ear during his active duty service. The November 2020 VA examiner clearly stated that there are no human studies that suggest that a person's hearing worsens after exposure to excessive noise is ended, but she ultimately found the presence of an in-service left ear threshold shift to be decisive regarding the Veteran's left ear hearing loss and nexus to service. As no such in-service threshold exists in the right ear, the same reasoning cannot be applied to the Veteran's hearing loss in the right ear. Additionally, the Veteran's representative argued that threshold shifts in the right ear at the 6000 Hertz level between May 1983 and September 1983 were probative in this determination because they "show[ed] a shift difference of 25 and 30." The Board is not persuaded by this argument, as the record shows that the Veteran experienced a hearing acuity of 30 decibels at the 6000 Hertz level in May 1983, which improved to 25 decibels at the same level in September 1983, and ultimately improved to 20 decibels at the same level at the September 1986 separation examination. Contrary to the representative's erroneous suggestion that the Veteran's right ear hearing acuity worsened from 25 decibels to 30 decibels between May 1983 and September 1983, the record shows that the Veteran's hearing acuity actually improved at the 6000 Hertz level in the right ear from 30 decibels in May 1983 to 25 decibels in September 1983, and improved even further at the same level in the September 1986 separation examination (to 20 decibels). Ultimately, the Veteran's service records show normal hearing in the right ear at service entrance and exit, as correctly identified by the November 2020 VA examiner, and any abnormal findings (greater than 20 decibels) at the 6000 Hertz level at the May 1983 and September 1983 audiograms were clearly acute and transient, as they were not replicated at the September 1986 service exit examination. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (the threshold for normal hearing is from 0 to 20 decibels). The Board finds no merit in the representative's August 2021 argument that there were medically significant shifts in both the right and left ear during service, as this is not shown by the record evidence and is contrary to the findings of the more qualified November 2020 VA examiner. The Board declines the representative's request to have this claim remanded for further evidentiary development, to include an independent medical opinion, as the record is legally sufficient to proceed with adjudication of the claim. The most probative medical nexus evidence of record is the November 2020 VA examination, and it indicates that the Veteran's current right ear hearing loss is not etiologically related to the Veteran's active duty service, to include excessive noise exposure. The Veteran has not submitted any probative medical nexus evidence establishing otherwise. In the absence of probative medical nexus evidence linking the Veteran's current right ear hearing loss to his active duty service, the Veteran's claim of entitlement to service connection for right ear hearing loss must be denied on a direct service connection basis. Lastly, hearing loss is considered an "other organic disease[] of the nervous system," subject to "chronic diseases" presumptive service connection consideration. 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Having fully considered the record, the Board finds that the requirements for presumptive service connection have not been met. The weight of the medical and lay evidence does not show that the Veteran manifested chronic symptoms of right ear hearing loss during his active duty service. The Veteran's service treatment records are negative for the presence of abnormal right ear hearing loss. Likewise, a review of the Veteran's lay statements shows he has never alleged that his hearing loss was present during service. Moreover, the evidence does not probatively establish that the Veteran continuously manifested symptoms of right ear hearing loss after service. The Veteran has been an unreliable historian regarding the onset and duration of his hearing loss symptoms. At various treatment visits, the Veteran described his hearing loss as "long-standing," but at the April 2015 visit with Dr. SF, he "noted a significant hearing loss for 3-4 years." In the September 2016 VA Form 9, Substantive Appeal, the Veteran indicated that "he [did not] realize how bad [his] hearing had gotten until his first VA examination [presumably referring to his initial February 2013 VA audiology visit], which was [his] first hearing examination since separating from the military." When questioned regarding the duration and onset of his hearing disability at the July 2019 Board hearing, the Veteran redirected and primarily described the onset of his tinnitus symptoms. While the Veteran passively agreed to the undersigned's suggestion that his hearing issues "[have] continued since [he] got out of service," no further information or clarifying statement was provided by the Veteran. In the various lay reports of record, the Veteran's statements predominantly focused on his tinnitus symptoms. See May 2014 and June 2015 Statements in Support of Claim; September 2016 Substantive Appeal. In these reports, he did not indicate the presence of notable hearing loss during service or in the years immediately following service. As noted above, the Veteran did not report subjectively perceiving noticeable hearing loss until his 2013 VA audiology assessmentapproximately 27 years after service discharge. In the October 2016 buddy statement received from the Veteran's cousin, the testimony focused on the Veteran's post-service tinnitus symptoms, without reference to observations related to any hearing loss experienced by the Veteran. In light of the above analysis, the Board finds no probative evidence that the Veteran experienced noticeable right ear hearing loss in service, to a compensable degree within one year from separation from active service, or on a continuous basis since service. Accordingly, service connection for right ear hearing loss pursuant to the provisions of 38 C.F.R. §§ 3.303(b), 3.307(a)(3), and 3.309(a) is not warranted on this record. As the preponderance of the evidence weighs against the Veteran's claim under all applicable theories of entitlement, the benefit-of-the-doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. For the reasons stated above, the Veteran's appeal seeking service connection for right ear hearing loss is denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante, 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.