Citation Nr: 21064383 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 18-42 679 DATE: October 20, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT Bilateral hearing loss did not have its clinical onset in service and is not otherwise related to active duty; a sensorineural hearing loss was not exhibited within the first post-service year. CONCLUSION OF LAW The criteria of entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 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 1962 to February 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for bilateral hearing loss. The Veteran filed a notice of disagreement (NOD) in December 2017 and a statement of the case (SOC) was issued in August 2018. He subsequently perfected a timely appeal. In Board decisions dated January 2021 and April 2021, the claims were remanded for further evidentiary development. As will be discussed below, the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A supplemental statement of the case (SSOC) was most recently issued in September 2021. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. 1. Entitlement to service connection for bilateral hearing loss. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d). To establish entitlement to service connection on a direct basis, the record must contain competent evidence of (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 in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain enumerated diseases will be service connected on a presumptive basis if they manifested to a compensable degree within one year after active duty service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). A nexus between the current disability and service may be established by evidence of continuity of symptomatology since service for a listed chronic disability. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). VA deems sensorineural hearing loss to be an organic disease of the nervous system for purposes of 38 C.F.R. § 3.309(a). See Veterans Benefits Administration (VBA) Fast Letter 10-02 (Mar. 18, 2010); Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the 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 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. Service connection will be granted for a hearing loss disability where the evidence establishes a nexus between the current hearing loss and a disease or injury suffered while in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, 5 Vet. App. at 159. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. In this matter, the Veteran contends that his bilateral hearing loss was incurred during his active military service. For the reasons set forth below, the Board concludes that service connection is not warranted. With respect to a current diagnosis, the November 2017 VA examiner confirmed that the Veteran has bilateral hearing impairment for VA compensation purposes. The first audiometric results available in the Veteran's STRs are dated in February 1962. To this end, prior to November 1967, service departments used ASA units to record pure tone sensitivity thresholds in audiometric measurement. VA currently uses ISO (ANSI) units. For purposes of evaluating the pre-November 1967 service audiometric data with current standards to measure hearing impairment, the table below shows the ASA measurements recorded in service, with the comparable ISO (ANSI) measurements in adjacent parentheses. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 Add 15 15 10 10 10 5 Accordingly, taking into account the ISO conversion, the February 1962 induction examination documented the following hearing thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 25 X 20 LEFT 30 25 25 X 20 Taking into account the ISO conversion, the January 1964 separation examination documented the following hearing thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 X 15 LEFT 20 15 15 X 15 The Veteran's service treatment records (STRs) dated in June 1962 documented treatment for right earache. He reported that an insect crawled in his ear. Physical examination revealed that his right ear appeared to be mildly infected. See the STRs dated June 1962. On his January 1964 Report of Medical History at separation, the Veteran endorsed, 'ear, nose or throat trouble.' However, the January 1962 separation examination did not document any abnormalities of either ear. The Veteran has asserted in-service noise exposure due to gunnery exercises and training demonstrations. See the Veteran's statement dated August 2017. To this end, the Board recognizes that the Veteran's military occupational specialty (MOS) was armor crewman and finds his statements of in-service noise exposure to be both competent and credible, consistent with the duties of his MOS. To that extent, the Veteran's in-service noise exposure is established. Thus, the crucial question in this matter is whether such noise exposure resulted in bilateral hearing loss. The Veteran was afforded a VA audiology examination in November 2017. The examiner interviewed the Veteran, reviewed his VA claims file including his lay statements and medical history, and performed audiological testing. The examiner then determined that the Veteran's bilateral hearing loss is not at least as likely as not caused by or a result of an event in military service. The examiner explained that the "Veterans hearing thresholds at time of entrance and separation were within normal limits. According to the American College of Occupational Medicine Noise and Hearing Conservation Committee, 'a noise induced hearing loss will not progress once it is stopped.'" The examiner then concluded, "it is my opinion that the Veteran's current hearing loss is less likely than not related to military noise exposure/acoustic trauma." When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Court has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As detailed above, the findings of the November 2017 VA examiner were thoroughly explained and fully supported by the evidence of record. The VA medical opinion was based on a review of the record, including the lay statements and evidence submitted by the Veteran, pertinent medical literature, and thoughtful analysis of the Veteran's medical history. For these reasons, the Board places significant weight on the findings of the November 2017 VA examiner. See Nieves-Rodriguez, 22 Vet. App. at 295 (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). The Board finds that the competent medical evidence demonstrating the absence of nexus between the currently diagnosed bilateral hearing loss and the Veteran's military service outweighs the evidence suggestive of nexus. In Hensley v. Brown, 5 Vet. App. 155 (1993), the Court stated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. However, as described in the November 2017 VA medical opinion, there is no lay or clinical evidence of a bilateral hearing loss disability in service or for years after the Veteran's military discharge. Continuity is not established. The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in equipoise. Considering the overall evidence, including the November 2017 VA medical opinion, and the lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater probative value. Accordingly, the preponderance of the evidence is against these service connection claim. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.