Citation Nr: 21063372 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-50 410 DATE: October 14, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT The preponderance of the evidence does not support the Veteran's claim for service connection for right ear hearing loss. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a), 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1981 to June 1984, with additional service in the Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This matter was previously before the Board in May 2019 at which time a claim of entitlement for service connection for right ear hearing loss was remanded for additional development to include obtaining any outstanding relevant VA treatment records and a separate VA medical opinion addressing the nature and etiology of the Veteran's right ear hearing loss. The examiner was specifically requested to consider the Veteran's arguments regarding noise exposure and ear infections (abscess) during active service, as well as the Veteran's submission of medical literature from, the American Speech-Language Hearing Association, American Hearing Research Foundation, and articles discussing noise induced hearing loss and delayed threshold shifts after noise exposure. The Board finds there was substantial compliance with the remand directives. See Stegall v. West, 11. Vet. App. 268 (1998). The matter has returned to the Board for further appellate consideration. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (the Court) has held that to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Horn v. Shinseki, 25 Vet. App. 231, 236 (2010). Sensorineural hearing loss is among the chronic diseases presumed related to service if shown as chronic (reliably diagnosed) in service; or, if manifested to a compensable degree within a presumptive period following separation from active service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For VA compensation purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385; Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran has a current diagnosis of right ear hearing loss. See March 2016 and September 2019 VA hearing loss and tinnitus examinations. Thus, the first question for the Board is whether the Veteran has a chronic disease that was noted as chronic in service or that manifested to a compensable degree in service or within the applicable presumptive period, or whether a continuity of symptoms has existed since service. The Veteran's service treatment records (STRs) include a May 1981 Report of medical history (RMH) for induction wherein the Veteran denied wearing a hearing aid, hearing loss, or other ear trouble. In a May 1981 Report of medical examination (RME), the Veteran's ears were noted normal. Right ear pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 / 0 The May 1981 RME does not include speech discrimination results. A July 1981 Audiology Clinic record noted the Veteran was issued with earplugs. In an October 1982 reference audiogram, the Veteran's right ear pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 10 5 10 Again, no speech discrimination results were noted. In a November 1986 RMH for separation, the Veteran denied wearing a hearing aid, hearing loss, or other ear trouble. In a November 1984 RME for separation, the Veteran's ears were noted normal. Right ear pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 5 No speech discrimination results were noted. The Board also reviewed treatment records during the Veteran's reserve service including an October 1984 ENT treatment record wherein the Veteran complained about intermittent right ear pain. The Veteran was diagnosed with a right ear canal abcess with puss; no hearing changes, dizziness, or otorrhea noted. October 1984 laboratory results confirm a staph infection in the Veteran's right ear canal. A March 1985 treatment noted the Veteran complained about itching ears, reporting that he uses Q-tips to scratch. The same record noted wax impaction was removed. The assessment noted acute hearing loss, rule out perforated tympanic membrane, otitis media, otitis externa. The Veteran was referred to an Ear, Nose, and Throat (ENT) specialist. In an August 1985 hearing reference audiogram during Reserve service, right ear pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 5 10 15 No speech discrimination results were noted. Post service treatment records include a June 2016 primary care record that noted the Veteran had previously been evaluated for tinnitus but reported that his hearing was stable. A review of symptoms noted in separate May 2017 and February 2019 optometry records were negative for hearing loss. Based on the above noted evidence, the Board concludes that bilateral hearing loss for VA purposes was not shown in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Service connection may still be granted on a direct basis. However, in this case, the Board finds the preponderance of the evidence is against finding that a medical nexus exists between right ear hearing loss and an in-service injury, event, or disease. The Veteran was afforded a March 2016 VA hearing loss and tinnitus examination. At that time, right ear pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 25 20 30 30 Maryland speech recognition testing revealed 96 percent in the right ear. The examiner noted that the Veteran had right ear hearing loss between 500 Hz. and 4000 Hz. No permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 Hz. and 6000 Hz. was noted. The examiner opined that the Veteran's right ear hearing loss in not at least as likely as not caused by or a result of an event during active service. As a rationale, the audiologist noted the Veteran's active service from June 1981 to June 1984. His occupational specialty, Unit Supply Specialist, has a low probability of exposure to loud noises. The audiologist noted the Veteran reported exposure to military noise during basic training and during field training. The Veteran also reported a history of civilian noise exposure and the placement of pressure equalization tubes due to otitis media shortly after separation from service. The audiologist concluded that a review of the STRs showed normal hearing in the May 1981 entrance examination and no significant threshold shifts were noted in a comparison to the May 1984 separation examination. Following the May 2019 Board REMAND, the Veteran was afforded a new VA hearing loss examination in September 2019. The audiologist noted a review of the claims file and an in-person examination. Right ear pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 45 45 45 50 Maryland speech recognition testing revealed 74 percent in the right ear. The audiologist diagnosed right ear sensorineural hearing loss. The examination report noted normal acoustic immittance, ipsilateral acoustic reflexes and contralateral acoustic reflexes. The audiologist determined there was no permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 HZ for the Veteran's right ear. The audiologist noted a review of the claims file including his DD-214, enlistment and separation examinations, RMHs, reference audiograms, post-service audiograms, and a review of the medical literature from the American Speech-Language Hearing Association, American Hearing Research Foundation, and articles discussing noise induced hearing loss and delayed threshold shifts after noise that were submitted by the Veteran. The audiologist opined the Veteran's right ear hearing loss is considered less likely than not (less than 50% probability) caused by or a result of military noise exposure and ear infections during service. As a rationale, the audiologist noted the Veteran's MOS has a low probability for hazardous noise exposure. In addition, the Veteran reported wearing hearing protection while firing weapons during field training. STRs show the Veteran had normal hearing sensitivity in both ears at 500-6K Hz at separation. Audiograms showed no significant threshold shift during active service. The November 1986 audiogram, obtained during the Veteran's Reserve service, showed normal hearing sensitivity in both ears at 500-6k Hz more than two years after separation from active service. The audiologist noted no evidence was identified to support a 50% probability that current hearing loss is due to military service. The audiologist also noted it is considered less likely than not (less than 50% probability) that the Veteran's right ear hearing loss was caused by or a result of ear infections during service. This is based upon evidence of record. In addition, the Veteran's STRs document a history of right outer ear (abscess) and right middle ear (PE tubes for otitis media) infections. These types of pathologies are most commonly associated with conductive and/or mixed hearing losses. However, current audiological testing reveals a sensorineural hearing loss for the Veteran's right ear with no indication of middle ear pathology. The Board finds that the September 2019 VA examination report and opinion in this case constitutes highly probative evidence. The examiner reviewed the Veteran's prior medical records, conducted a thorough examination, addressed the medical literature submitted by the Veteran, considered the Veteran's contention that his hearing loss is related to noise exposure and ear infections (ear canal abscess) in service, and provided a medical opinion that relied not only upon the audiological findings in service but also the Veteran's reported noise exposure, ear infections, and the gap in time between separation from service and the date of diagnosis. By contrast, while the Veteran is competent to observe lay symptoms of hearing problems, he does not have the training or credentials to provide a competent opinion as to a diagnosis of a hearing loss disability, defined as noted by regulation and by specific testing, or the onset date of such diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board assigns substantially more probative value to the examiner's opinion. In summary, while there is evidence of right ear hearing loss, the preponderance of the evidence is against the Veteran's claim for service connection. There is no reasonable doubt to be resolved, and the claim of entitlement to service connection for right ear hearing loss must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Banks, Associate 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.