Citation Nr: 21065385 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-38 579 DATE: October 26, 2021 ORDER Entitlement to service connection for bilateral hearing loss disability is denied. FINDINGS OF FACT 1. The Veteran denied hearing loss upon separation from service, and the earliest post-service evidence of hearing loss is not for more than two decades after his separation from service. 2. The most probative (meaning most competent and credible) evidence is against finding that he had a hearing loss disability during his service or sensorineural hearing loss especially within a year of separating from service or that he has a hearing loss disability otherwise related or attributable to his service. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for bilateral hearing loss disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U. S. Army from October 1966 to May 1969. In support of this claim, the Veteran testified at a videoconference hearing in March 2015 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. The Board subsequently reopened but denied this claim in a May 2020 decision, and in response the Veteran appealed the Board's decision denying this claim to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In March 2021, the contesting parties filed a Joint Motion for Partial Remand (JMPR) asking the Court to Vacate the Board's decision denying this claim and to remand this claim back to the Board for further development and readjudication pursuant to agreement in the JMPR. The Court granted the JMPR in an April 2021 Order. In July 2021, after receiving this case back from the Court, the Board in turn remanded this claim back to the local Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ), for the further development and consideration that had been agreed to in the JMPR including especially for an additional examination and another medical nexus opinion concerning the origins of the Veteran's bilateral hearing loss, particularly in terms of whether related or attributable to the noise trauma in service he cites as the reason or cause of it. There since has been substantial compliance with the Board's remand directives. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that another remand is not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Entitlement to service connection for bilateral hearing loss disability In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation ("nexus") between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In addition, certain "chronic" diseases including sensorineural hearing loss will be presumed to have been incurred in service, absent an intervening ("intercurrent") cause, if they were shown as chronic in service or if they manifested to a compensable degree within a year following separation from service, or if they were noted in service (or within the presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of bilateral hearing loss and sufficient hearing loss in each ear, so bilaterally, to be considered a ratable disability for VA compensation purposes meaning according to the requirements of 38 C.F.R. § 3.385. See July 2013 VA Disability Benefits Questionnaire (DBQ). The Veteran has claimed that he had exposure in service to excessively loud noise. During his July 2013 VA audiological evaluation, he explained that he sustained noise trauma in service while performing his duties as a heavy equipment operator, because that job required him to work with loud machinery and exposed him to artillery small weapons fire. He reiterated this contention during his more recent March 2015 hearing before this Board. His DD Form 214 lists his Military Occupational Specialty (MOS) as wheeled tractor operator, and his military personnel records show he served in Vietnam. Consequently, the Board finds that the types, places, circumstances, and hardships of his service are consistent with the type of noise exposure he alleges. See 38 U.S.C. §1154(a). Thus, noise exposure during his service is conceded and, in fact, was the basis for the Board granting service connection for his tinnitus (i.e., the ringing in his ears) in the prior May 2020 decision. However, like the tinnitus, there still must be probative attribution of the Veteran's bilateral hearing loss disability to his military service, and it is in this equally critical respect that he still does not have the required supporting evidence, even since the Board's remand of this claim in July 2021. See Watson v. Brown, 4Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.") The evidence still does not support the notion that the Veteran had hearing loss during his service or sensorineural hearing loss especially to a compensable degree within a year of his separation from service or that his current hearing loss is otherwise related or attributable to his service, even if not until later diagnosed. See 38 C.F.R. § 3.303(d) (permitting service connection even when the initial diagnosis was not until after service, provided the evidence, including that pertinent to service, establishes the disability was incurred in service). It is significant in this regard that Veteran has given inconsistent statements concerning when his hearing loss onset in relation to his service, and this tends to undermine the probative value of his lay statements and testimony concerning this recollection. He has asserted the onset in 1997 or 1998 (see July 2013 DBQ), but also has said it was during his service (see August 2016 Notice of Disagreement (NOD), also during the 1990s (see VA clinical records), and a "few years" after he returned home from Vietnam (see July 2021 statement). Because even he, himself, has given varying accounts of when it started, this undermines his credibility. See Cartright v. Derwinski, 2 Vet. App.24, 25 (1991) (finding that, while the Board may not ignore a Veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony.) In addition, the Veteran's sister (D.S.) indicated in a 2020 statement that she had noticed him having difficulty hearing during the past 20 years which, if true, would put her observation of his hearing loss as starting in approximately 2000. That was many years (indeed several decades) after his discharge from the military in May 1969 so does not tend to support the onset of his hearing loss during his service. His wife (C.P.B.), who admittedly did not meet him until 1999, reported noticing he had problems with hearing shortly after they started dating; but, again, even if true, this is not probative of onset in service or even shortly thereafter. In any event, the Veteran and these others speaking on his behalf are not competent to state that he had sensorineural hearing loss within a year of his separation from service, so by May 1070, and to a compensable degree (meaning to at least 10-percent disabling) because that finding is based on numerical evaluations and derived from a "mechanical" application of the results of a hearing evaluation to the standards set forth in the Rating Schedule. See 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100. See also Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Thus, service connection is not warranted on a presumptive basis. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). That said, the Court also has pointed out that a Veteran need not have had ratable hearing loss during his service or even within the one-year presumptive period following conclusion of his service to warrant service connection, so long as he now meets the requirements of § 3.385 and has attribution of his hearing loss to his service, as opposed to other ("intercurrent") causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993); see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Here, though, even accepting this, the most probative evidence still is against the claim. Service treatment records (STRs) dated in May and June 1968 reflect that the Veteran complained of pain in his right ear; it was treated by flushing his ear with peroxide and water and prescribing Aerosporin. His STRs are unremarkable for complaints of hearing loss or of a consequent diagnosis. His May 1969 Report of Medical History for separation purposes reflects that he reported that his health was excellent, and he specifically denied having, or having previously had, hearing loss. Also, notably, he reported having had other conditions or ailments. Thus, if he also had had hearing loss in service, it stands to reason that he would have reported it, as well, but he clearly did not. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Moreover, as the VA examiners have highlighted, there also was no objective indication of hearing loss in either ear during his separation examination. Post service, the Veteran had training as a heavy-duty truck and equipment mechanic and more than two decades employment in residential remodeling or construction, both of which reasonably can be expected to have involved some additional exposure to noise, although he has explained that he wore hearing protection. He also had work in vehicle sales, which was not considered to be noisy. He reported recreational exposure to noise including to power tools, woodworking, motor boating, and lawn equipment, albeit all with hearing protection. The Veteran nonetheless has been inconsistent concerning the extent of his potential post-service noise exposure. For example, he stated on his 2017 VA Form 9 (Substantive Appeal to the Board), that he has "had office jobs and minimum noise exposure from date of discharge to current", and he testified during his hearing before this Board that more than 90 percent of the time he was a "pencil contractor" working on the logistical side of construction and did primarily sales; however, the Board sees that the majority of the evidence in the file supports concluding, instead, that he had manual labor jobs and/or apprenticeship in automotive mechanics and/or construction remodeling (see, e.g., 1971 correspondence and apprentice agreement, July 2013 DBQ, and August 2015 posttraumatic stress disorder (PTSD) DBQ noting that he had been self-employed in the construction field for 23 years, mostly working by himself and primarily remodeling homes, and that during winter months, he supplemented his income by building and repairing hot-rod engines and transmissions.) A June 2012 VA clinical record to establish care and follow up on multiple medical issues shows the Veteran did not then have acute hearing loss, did not have a history of hearing loss noted, but had tinnitus and a history of cerumen (ear wax) impactions in the past. Again, if he had had hearing loss ever since his service (i.e., during the prior four decades), or even starting shortly thereafter, it seems reasonable that it would have been indicated, especially since he noted his tinnitus. The July 2013 DBQ confirmed the Veteran had hearing loss based on the results of his audiological evaluation. But this earliest clinical evidence of a hearing loss disability is not for several decades after his separation from service. That long a lapse of time between his separation from service and the earliest documentation of this now claimed disability is a factor for consideration in deciding this service connection claim and tends to refute the notion that his hearing loss originated during his service or even within a year of his discharge. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See also Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). In Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) recognized lay evidence as potentially competent to support the presence of a claimed disability, even where not corroborated by contemporaneous medical evidence such as actual treatment records. In other words, the mere absence of evidence does not necessarily equate to unfavorable evidence. There are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). See also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence). The Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias...."). In this case at hand, not only did the Veteran deny hearing loss when separating from service, but to reiterate he also has been inconsistent in his contentions as to when his hearing loss eventually onset. His contention that his hearing loss began during the 1990s would adequately explain a lack of clinical records of any hearing loss in the two decades after his separation from service. Also keep in mind the Board remanded this claim back to the RO (AOJ) in July 2021 for still more medical comment concerning the origins of the Veteran's bilateral hearing loss in relation to his military service. And the September 2021 DBQ obtained on remand contains the opinion of the examiner that it is less likely than not the Veteran has a current hearing loss disability related to his service. The examiner's unfavorable opinion was based on many factors including the earliest probative indication of hearing loss, the Veteran's denial of hearing loss when separating from service, his audiological test results that have sloping more consistent with presbycusis (i.e., hearing loss due to simple aging), and a lack of conclusive research showing "delayed onset" of hearing loss in humans over decades later. Regarding the latter, the examiner considered the Institute of Medicine (IOM) study in 2005 that discussed delayed-onset hearing loss but ultimately found that there were no human longitudinal studies that can provide consistent and significant evidence of delayed-onset hearing loss. The examiner also noted that, within the audiological research community, there is not enough evidence to correlate delayed hearing loss to noise exposure. The Board finds the opinion to be probative of the etiology of the Veteran's current hearing loss in terms of disassociating it from his military service since the opinion contains the required underlying reasoning or rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). The Veteran testified during his hearing before this Board that he has been told by an audiologist that his hearing loss is probably due to noise exposure in service; however, as the Court has explained, the "connection between what a physician said and the layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical evidence.'' Robinette v. Brown, 8 Vet. App. 69, 77 (1995). Moreover, the Board finds that any clinical opinion based on a less than credible history of symptoms since service lacks probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant). See also Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Coburn v. Nicholson, 19 Vet. App. 427 (2006). The Veteran has not been shown to have the experience, training, or education necessary to give a probative opinion regarding the origins of his hearing loss, including in terms of whether related or attributable to anything that occurred during his time in the military. This determination is beyond his lay competence. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). The evidence reflects that the Veteran most likely has age-related hearing loss, and even if he has some hearing loss due to acoustic trauma, he had post-service noise exposure with the onset of hearing loss decades after his separation from service, and with no probative opinion (i.e., based on review of pertinent records and with adequate rationale) indicating his current hearing loss is as likely as not due to his service. For these reasons and bases, service connection is not warranted. And, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.