Citation Nr: 21063856 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 16-61 648 DATE: October 18, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's hearing loss began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1973 to October 1978, and from August 1979 to June 1981. 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 Muskogee, Oklahoma. These matters were before the Board in January 2019, when they were remanded for further development. The Board finds that there has been substantial compliance with that remand, and the matter is ready for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also notes that there is a separate appeal currently pending of the Veteran's claim for service connection for asbestosis. The Veteran has requested a hearing with a Veterans Law Judge on this issue. The Veteran's claim for service connection for asbestosis will be addressed by the Veterans Law Judge holding the hearing on the matter. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, and to those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Although review of the claims file shows that private medical records were scanned into VA medical records which are not included in the claims file, it does not appear that these records are relevant to the hearing loss claim before the Board. See, e.g., September 2016, November 2016, March 2018, September 2018, August 2019, November 2019, and March 2020 VA treatment records (noting that private treatment records pertaining to treatment of the Veteran's skin, feet, hand, elbow, knees, and circulatory and respiratory systems had been scanned into the Veteran's VA medical file). Accordingly, the Board may proceed with a decision on the Veteran's claim. The Veteran's claim for service connection for bilateral hearing loss is denied. The Veteran seeks service connection for bilateral hearing loss and asserts that his current hearing loss is due to acoustic trauma experienced during his service, particularly in relation to his military occupational specialty (MOS) of aviation structural mechanic specializing in hydraulics. Service connection may be granted if the evidence demonstrates that a Veteran's current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred during service in the Armed Forces or, if preexisting such service, was aggravated therein. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence 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 disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Alternatively, service connection may be established by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. See 38 C.F.R. § 3.303(b). Sensorineural hearing loss, an organic disease of the nervous system, is a chronic condition under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Regarding service connection claims for hearing loss, the Board notes that this particular disability is defined by regulation. Specifically, under the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels (dB) or greater; when the auditory thresholds for at least three of the above frequencies are 26 dB or greater; or, when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the Board observes that the threshold for normal hearing is between 0 and 20 dB and that higher thresholds indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The absence of in-service evidence of hearing loss is not fatal to a claim for service connection; rather, evidence of a current hearing loss disability and a medically sound basis on which to attribute that disability to service may warrant a grant of service connection for hearing loss. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); Hensley v. Brown, 5 Vet. App. at 159. Moreover, to establish service connection for sensorineural hearing loss, a veteran is not obligated to show that their hearing loss was present during active service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service or during the one-year presumptive period thereafter, the evidence must establish a nexus between their current disability and their in-service exposure to loud noise. See Godfrey v. Derwinski, 2 Vet. App. 352 (1992). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of their current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis, or to establish etiology, if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine on a case by case basis whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in approximate balance, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; see Lynch v. McDonough, 999 F.3d 1391, 1394-95 (Fed. Cir. 2021); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In the present case, the Veteran received a medical examination upon his entrance into service in October 1973. The audiogram he received at the time revealed the following puretone thresholds, in decibels: FREQUENCY 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT EAR 15 dB 5 5 X 5 LEFT EAR 25 5 5 X 5 The Veteran received a medical examination, including an audiogram, in October 1977. The audiogram revealed the following puretone thresholds: FREQUENCY 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT EAR 10 dB 5 0 5 5 LEFT EAR 10 5 0 5 0 Upon his discharge from service in October 1978, the audiogram the Veteran received as part of his medical examination revealed the following puretone thresholds: FREQUENCY 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT EAR 10 dB 0 0 0 5 LEFT EAR 10 0 10 10 5 The Veteran received a medical examination upon his second entrance into service in August 1979. The audiogram he received at the time revealed the following puretone thresholds: FREQUENCY 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT EAR 15 dB 5 5 5 5 LEFT EAR 15 10 10 10 5 The Veteran received an audiometric examination in February 1981 which revealed the following puretone thresholds: FREQUENCY 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT EAR 20 dB 5 0 15 15 LEFT EAR 25 10 10 15 10 Upon discharge from his second period of service in June 1981, the audiogram the Veteran received as part of his medical examination revealed the following puretone thresholds: FREQUENCY 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT EAR 5 dB 15 5 5 15 LEFT EAR 5 5 5 15 5 During both his first and second periods of service, the Veteran's MOS was aviation structural mechanic specializing in hydraulics, an MOS associated with a high probability of exposure to hazardous noise. Pursuant to his claim for service connection for bilateral hearing loss, the Veteran received a VA medical examination in April 2016. The examiner performed an in-person examination and reviewed the evidence in the Veteran's VA e-folder. The audiogram taken by the examiner revealed the following puretone thresholds: FREQUENCY 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT EAR 20 dB 15 25 40 55 LEFT EAR 15 10 25 50 60 Speech recognition testing using the Maryland CNC Word List yielded speech recognition ability of 96 and 100 percent in the right and left ears, respectively. The examiner found that the Veteran exhibited normal acoustic immittance and normal ipsi- and contralateral acoustic reflexes in both ears. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss. With respect to etiology, the examiner opined that the Veteran's hearing loss was less likely than not caused by or a result of active service. In support, the examiner reasoned that for each of the Veteran's in-service audiological tests, his hearing thresholds were within normal limits and showed "no threshold shifts." The Veteran reported that he experienced difficulty understanding speech without direct visual cues, as well as no occupational or recreational noise exposure either before or after his military service. Additionally, and in relation to the Veteran's then-pending claim of service connection for tinnitus, the examiner opined that his tinnitus was less likely than not a symptom associated with his hearing loss and at least as likely as not caused by or a result of active service, noting that the Veteran's tinnitus was noticeable as soon as he left service and that it predated his hearing loss, which was not present at the time of his discharge. The Board previously remanded this claim to afford the Veteran another VA examination. In particular, given that the examiner indicated "no threshold shift" in service, it was unclear whether the 2016 examiner relied on accurate factual premises as the Veteran's in-service audiograms certainly showed some threshold shifts, particularly in February 1981. The Veteran, moreover, provided subsequent statements describing his in-service duties as an aviation aircraft mechanic working on an aircraft carrier flight deck and his extensive in-service hazardous noise exposure. The Veteran received a VA contract examination in December 2019. The VA contract examiner performed an in-person examination and reviewed the evidence in the Veteran's claims file. The Veteran reported to the examiner that he experienced difficulty understanding speech in noise. He also denied pre-service noise exposure and post-service occupational noise exposure and reported that he did not use hearing protection when mowing or when riding motorcycles. He stated that during his service he was exposed to noise from jet aircraft, auxiliary power units, aircraft catapult and recovery, and weapons fire. The audiogram taken by the examiner revealed the following puretone thresholds: FREQUENCY 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT EAR 20 dB 20 45 50 70 LEFT EAR 15 20 50 55 70 Speech recognition testing using the Maryland CNC Word List yielded speech recognition ability of 80 and 86 percent in the right and left ears, respectively. The examiner found that the Veteran exhibited normal acoustic immittance bilaterally, and abnormal ipsi- and contralateral acoustic reflexes bilaterally. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss. With respect to etiology, the examiner opined that the Veteran's hearing loss was less likely than not caused by or a result of an event in active service, notwithstanding the Veteran's duties and high probability of acoustic trauma during service. The examiner explained that the Veteran had normal hearing throughout service and no permanent significant threshold shifts. For the Veteran's first period of service, the examiner stated that the October 1973, October 1977, and October 1978 in-service audiological examinations showed normal bilateral hearing throughout that period of service. For the Veteran's second period of service, the examiner noted that the Veteran's right ear showed normal hearing throughout that period of service. The examiner explained that the threshold shift in the left ear shown in the February 1981 in-service examination was not duplicated in the June 1981 discharge examination, indicating that the shift was temporary. The examiner also stated that the frequency at which a threshold shift was indicated in the February 1981 examination was not indicative of noise-induced hearing loss. The examiner reasoned that neither ear showed a permanent positive threshold shift greater than normal measurement variability at any relevant tested frequency. The Board finds that, as demonstrated in the April 2016 VA examination and December 2019 VA contract examination, the Veteran has a current hearing loss disability for VA purposes. The Board also notes VA's concession that the Veteran's MOS carried a high probability of noise exposure. Accordingly, the principal question before the Board is whether the Veteran's current hearing loss is medically related to his exposure to noise during service. The Board finds that service connection for bilateral hearing loss is not warranted. Normal hearing was shown on the Veteran's in-service audiological examinations of October 1973, October 1977, October 1978, August 1979, and June 1981. While the audiological examination performed in February 1981 showed a threshold shift at 500 Hz in the left ear, that shift was not present at the Veteran's June 1981 discharge examination and, as opined by the December 2019 VA examinations of record, no significant threshold shifts are otherwise shown in the Veteran's service treatment records. Additionally, the December 2019 VA contract examiner specifically addressed the February 1981 threshold shift opining that the Veteran's current bilateral hearing loss was less likely than not related to his service and that the threshold shift shown in the February 1981 in-service audiological examination was temporary. The examiner also stated that the frequency at which a threshold shift was shown in the February 1981 examination did not indicate noise-induced hearing loss. The Board finds that the December 2019 VA contract examiner's opinion is adequate, and highly probative. The opinion reflected thorough consideration of the Veteran's pertinent medical history and lay statements. The examiner's opinion was well-reasoned, consistent with the other evidence of record, and supported by an adequate rationale. The examiner accurately reported the Veteran's medical history, lay reports of hearing loss, and pre-, in-, and post-service experience of noise exposure. Also significant, there is no contrary medical opinion of record. While the Board recognizes that an absence of in-service evidence of hearing loss is not fatal to a claim for service connection, the Board finds that there is no persuasive evidence of any permanent significant threshold shift in the Veteran's hearing corresponding to his periods of service or suggesting a nexus between his service and his current hearing loss. Although the Veteran's MOS was one which carried a high probability of noise exposure, there is also no medical evidence of record indicating that any such exposure produced a permanent and significant shift in the Veteran's puretone thresholds sufficient to qualify him for service connection for hearing loss. The Board considered the Veteran's lay statements. To that end, while the Veteran has consistently reported experiencing tinnitus since separation from service, he has not similarly described an ongoing experience of hearing loss since separation. While the Veteran's representative stated in August 2018 that the Veteran maintained that his current hearing loss was "coincident" to noise exposure experienced during service, this contention is vague and does not indicate that he began experiencing hearing loss in or shortly after service, nor that he experienced continuous symptoms following his discharge. In short, the Veteran has not reported that his hearing loss began in service or that he experienced continuous symptoms of hearing loss since service. The objective evidence, moreover, does not show the Veteran's hearing loss began in service or for decades thereafter. The unrefuted medical opinions of record all opine that the Veteran's current hearing loss is not likely related to his military noise exposure or any other incident of his military service. Thus, based on the totality of the evidence before it, the Board finds that service connection is not warranted for bilateral hearing loss. The Board acknowledges the Veteran's belief that his bilateral hearing loss is the result of noise exposure experienced during his military service. However, he has not been shown to have the requisite medical expertise to provide an opinion regarding the etiology of a complex medical condition. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's opinion on this point is not probative. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). While he is competent to describe his experience of symptoms, he has not contended as noted above that he has experienced hearing loss continuously since service. Based on the foregoing, the preponderance of the evidence is against the claim for service connection for bilateral hearing loss; as such, the benefit of the doubt rule is not for application. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David A. F. Litvak 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.