Citation Nr: 21064397
Decision Date: 10/20/21	Archive Date: 10/20/21

DOCKET NO. 17-38 087
DATE: October 20, 2021

ORDER

Entitlement to service connection for bilateral hearing loss is denied.

FINDING OF FACT

The Veteran's bilateral hearing loss did not onset in service, nor is it etiologically related to service.

CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 5103 (a), 5103A, 1131, 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.309, 3.385.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from November 1966 to November 1968.

This appeal was remanded by the Board in April 2021.  The Board is now satisfied there was substantial compliance with this Remand.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  Specifically, the AOJ attempted to determine whether any of the Veteran's Social Security benefits were based on hearing loss.  In a July 2021 communication, the SSA National Records Center noted that they did not have any records responsive to the RO's request.  The Veteran filed an August 2021 response, adding that he never applied for SSA benefits due to a hearing loss disability.  

After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in August 2021.  Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case.

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

In cases where a hearing loss disability is claimed, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38C.F.R. §3.385.

38 C.F.R. § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran's separation from service do not meet the requirements of 38C.F.R. §3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993).

Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385.  Hensley, 5 Vet. App at 155.  If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for "disability" under 3 8C.F.R. §3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159.

Entitlement to service connection for bilateral hearing loss

The Veteran claims service connection for bilateral hearing loss.  He claims that his disability stems from being near large running diesel motors while on active duty as a cook.

In this case, based on the evidence of record, the Board determines that service connection is warranted for the Veteran's hearing loss.

Based on his service records, including his DD-214, and the consistency of his July 2016 and July 2017 statements with the evidentiary record, the Board concedes that the Veteran was regularly exposed to noise from diesel and jet engines in-service, despite his MOS of cook traditionally being considered having low probability of noise exposure.  Thus, the Board concedes exposure to hazardous noise for purposes of establishing an in-service event.  Per his August 2019 C&P examination report, current hearing loss is also conceded.

First, the Board finds sufficient evidence to conclude that there was no significant threshold shift in service. The Board notes that unless otherwise specified, service department audiometry prior to January 1, 1967, is assumed to have been reported in American Standards Association (ASA) units. To facilitate review, the ASA values have been converted to International Standard Organization (ISO) standards.

The Veteran's January 1966 induction examination report indicates no reported hearing loss, and only showed a right ear threshold of 15 dB at 500 Hz, 5 dB at 1000 Hz and 2000 Hz, 10 dB at 3000 Hz, 15 dB at 4000 Hz.  As for the left ear, the induction report indicates 20 dB at 500 Hz, 15 dB at 1000 and 2000 Hz, 25 dB at 3000 Hz, and 25 dB at 4000 Hz.   

At his April 1974 exit audiogram, the Veteran demonstrated right ear thresholds of 30 dB at 500 Hz, 25 dB (or 15 dB) at 1000 Hz and 2000 Hz, 20 dB at 3000 Hz, 25 dB at 4000 Hz.  For the left ear, he demonstrated 25 dB at 500 Hz, 15 dB at 1000 Hz and 2000 Hz, 20 dB at 3000 Hz, and 20 dB at 4000 Hz. The Veteran denied hearing loss at his exit audiogram

Bases on this evidence, the largest variation in right ear thresholds from induction to separation is 15 dB.  Indeed, the Veteran's April 2016 C&P examiner noted that the Veteran's entrance and exit examinations both reported objective measurements within normal limits.  Additionally, a 15 dB change was observed at 500 Hz in both ears, but the examiner opined that such a shift was within normal limits and does not signify a permanent threshold shift.  Furthermore, the Court has held that the threshold for normal hearing is from 0 to 20 decibels. Hensley at 157. In this case, there is no indication that the Veteran's thresholds varied during service more than this amount during his time in service.  While VA and the Veteran agree that he was exposed to noise in service, the evidence does not indicate a permanent threshold shift in service.

Further, the post-service evidence does not reflect symptoms related to sensorineural hearing loss for more than a year after the Veteran left active duty service.  Specifically, while the Veteran's representative contends that his hearing loss is related to loud generator equipment, the first clinical indication of sensorineural hearing loss is the Veteran's April 2016 examination, more than 40 years after his separation from service.  The Veteran's statements do not indicate that he is claiming sensorineural hearing loss since service.  Accordingly, continuity of right ear sensorineural hearing loss symptomatology with regard to the medical evidence and the Veteran's statements has not been shown.

Finally, service connection may be warranted if the evidence establishes a medical nexus between the Veteran's current symptoms and active duty or service connected disabilities. In this case, there is no demonstrable medical nexus between the Veteran's active duty and current hearing loss. While the Veteran ascribes his hearing loss to noise exposure in service, his medical treatment records do not indicate the presence of such a medical cause.

Here, after an examination of the Veteran, the April 2016 VA examiner's provided a negative nexus opinion, based in part on the assessed low probability of hearing loss as a cook, and the passing of over 40 years between the Veteran's separation and application for service connection.  Next, the Veteran's August 2019 VA examiner reiterated that the Veteran's hearing loss was less likely related to in-service noise exposure, because there was no threshold shift in service.  Although noise exposure is conceded and the relationship between noise auditory damage, and hearing loss is well documented, permanent auditory damage and hearing loss are not generally conceded based on noise alone.  

A September 2019 addendum opinion from the same examiner elaborates, citing the Journal of Occupational and Environmental Medicines' observation that "most scientific evidence indicates that previously noise-exposed ears are not more sensitive to future noise exposure and that hearing loss from noise does not progress (in excess of what would be expected from the addition of age-related threshold shifts) once the exposure to noise is discontinued."  In other words, medical evidence does not support the theory of delayed noise induced hearing loss.  The examiner indicates that continuous, uninterrupted noise-exposure is more damaging to the ears than periodic noise-exposure.  She therefore opined that the Veteran's hearing loss is more likely age-related.  Accordingly, a nexus to service is less likely.  

The Board has also considered the Veteran's assertions relating his hearing loss to noise exposure during active service.  The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In this case, however, the Veteran is not competent to testify regarding the etiology of sensorineural phenomena.  See Jandreau, 492 F.3d 1372 at 1377, n.4.  Because such disorders are not diagnosed by unique and readily identifiable features, they do not have a simple identification that a layperson is competent to make. Therefore, the Veteran's lay statements that his current disorders are related to his time in service are found to lack competency.

In sum, the Board recognizes that the Veteran experienced acoustic trauma in service, and notes his testimony regarding the nature of his service. However, despite his acoustic trauma, the medical evidence of record during his time in service and since then does not indicate that he has hearing loss because of such trauma. To the contrary, the most probative evidence of record shows no evidence linking the Veteran's hearing loss to any event, injury, or disease incurred in service.  Based on the evidence of record, the Veteran's claims must be denied. 

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Z. Maskatia