Citation Nr: 21066722 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 14-03 609 DATE: November 2, 2021 ORDER Entitlement to service connection for a left ear hearing loss disability is denied. FINDING OF FACT The probative evidence of record does not demonstrate that the Veteran's hearing loss manifested within one year of separation, or is etiologically related to service, to include on the basis of continuity of symptomology. CONCLUSION OF LAW The criteria for entitlement to service connection for a left ear hearing loss disability have not been met. 38 U.S.C. §§ 1131, 5107; 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 January 1988 to July 1994. The Veteran attended a hearing before the undersigned Veterans Law Judge in July 2015. A transcript of the hearing is of record. This matter was previously remanded by the Board of Veterans' Appeals (Board) in November 2015, January 2020, and April 2021. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the issue of entitlement to service connection for an acquired psychiatric disorder to include other specified stressor-related disorder and post-traumatic stress disorder (PTSD) was previously before the Board. During the pendency of the appeal the Agency of Original Jurisdiction (AOJ) granted entitlement to service connection for unspecified anxiety disorder and major depressive disorder, recurrent, moderate claimed as psychiatric disorder including post-traumatic stress disorder, in a July 2021 rating decision. This is considered a full grant of benefits, and the issue is no longer before the Board. Entitlement to service connection for a left ear hearing loss disability The Veteran contends that he has a current left ear hearing loss disability that is related to his active service. 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). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) 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 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. The Court has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran underwent a VA audiological examination in June 2013. The VA audiological examination revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 25 5 10 15 LEFT 15 20 10 20 30 Maryland CNC speech recognition testing was 96 percent for both ears. Notably, this does not constitute a disability for VA compensation purposes in either ear at this point. See 38 C.F.R. § 3.385, explained above. The examiner opined that the Veteran's hearing loss was less likely than not a result of military noise exposure. The examiner stated that the Veteran's enlistment and separation examinations show normal hearing. The examiner further stated that since the Veteran's hearing did not change more than 10 dB it is not likely there has been significant change in hearing. At the July 2015 Board hearing, the Veteran testified that he was exposed to acoustic trauma during service. The Veteran testified that he was exposed to loud noise from live weapons fire as well as from loud noise from planes while working in the flight line area while in service. The Veteran further testified that he had minimal noise exposure prior to service and post-service. The Veteran submitted a March 2015 private hearing test. The Veteran exhibited the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 10 15 25 LEFT 10 20 10 15 25 Again, these thresholds do not meet the criteria for a hearing loss disability under the regulations that apply. The Veteran submitted a private medical opinion from Dr. K.P. from October 2015. Dr. K.P. stated that because the Veteran's service treatment records were not available during the evaluation, a significant shift in thresholds could not be ruled out. Therefore, Dr. K.P. opined that the Veteran's high frequency hearing loss is at least as likely as not caused by or aggravated by military noise exposure. The Veteran underwent another VA audiological examination in February 2016. The VA audiological examination revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 25 25 LEFT 15 20 20 25 45 Maryland CNC speech recognition testing was 96 percent in the right ear and 100 percent in the left ear. This is the first time that the Veteran's left ear hearing loss is severe enough to qualify as a "disability" for VA purposes (because of the 45 decibels at the 4000 range). The examiner opined that the Veteran's left ear hearing loss was less likely than not a result of military noise exposure. The examiner stated that the Veteran had normal hearing at discharge and no significant shift in thresholds from induction to discharge. The examiner also noted that records from 2013 and 2015 indicate that a shift occurred in left ear hearing sometime after separation in 1994. A medical opinion regarding the etiology of the Veteran's claimed left ear hearing loss was obtained in January 2020. The examiner opined that it was less likely than not that the Veteran's left ear hearing loss was incurred in or caused by his active service. The examiner noted that there was no significant shift in thresholds from induction to discharge. The examiner cited the Institute of Medicine and stated that current science indicates that "understanding of the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely". Additionally, the examiner stated that the "evidence from laboratory studies in humans and animals is sufficient to conclude that the most pronounced effects of a given noise exposure on pure-tone thresholds are measurable immediately following the exposure". The Veteran had another examination for his claimed bilateral hearing loss disability in August 2021. The August 2021 audiological examination revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 25 25 30 LEFT 15 20 20 35 35 Maryland CNC speech recognition testing was 100 percent for the right ear and 98 percent for the left ear. Although these thresholds do not meet the criteria for a diagnosis of a hearing loss disability per VA regulations, because the Veteran had a diagnosis of left ear hearing loss in February 2016, during the appeal, that element is established. The examiner opined that the Veteran's left ear hearing loss was less likely than not a result of military noise exposure. The examiner stated that there was no evidence of a permanent auditory threshold shift in either ear during service. The examiner noted that there was no report of hearing loss during service. The examiner acknowledged that the Veteran had a military occupational specialty (MOS) of light infantryman and had a high probability of exposure to hazardous noise, however, the examiner noted that the Veteran used hearing protection. Furthermore, the examiner noted that the Veteran reported minimal use of firearms, only at basic training, and that while he reported noise exposure from consistently working around aircrafts and ground power units, he did not complain of significant hearing difficulties while in service. The examiner opined that, while noise exposure is conceded, there was no evidence of noise injury, and specifically no permanent significant decrease in the puretone thresholds from enlistment to separation, nor any complaints of hearing difficulties. The examiner stated that the Veteran's post military career had him working around Diesel Locomotive engines as a locomotive electrician, where he reportedly was exposed to this noise for minute to hours each day as he was routinely around idling engines. Additionally, the examiner stated that the Veteran's left ear hearing loss is high frequency in nature which tends to occur with either natural aging, ototoxic medications or noise exposure. The examiner stated that given that this Veteran is still young and has not been on any known ototoxic medications, the likely cause is from a strong history of noise exposure, noting that age and medication shifts tend to be both ears declining at the same rate whereas this Veteran has a difference in his ears with the left ear being worse than the right ear. The examiner noted that with noise exposure, ears will also decline at the same rate bilaterally unless there is an explainable consistent exposure to one ear more than the other. The examiner noted that one example of this firearms, indicating that a Veteran that is consistently a right-handed shooter, such as this Veteran, will see a greater decline in the left ear hearing. However, the examiner noted that the Veteran reported only using firearms during basic training and concluded that this would not be a consistent difference. Furthermore, the examiner noted that the Veteran also reported recreational hunting as an outside noise exposure which could explain the difference in ears as well as his work on locomotive engines. The examiner also noted that the Institute of Medicine does show that "[t]he evidence from laboratory studies in humans and animals is sufficient to conclude that the most pronounced effects of a given noise exposure on pure-tone thresholds are measurable immediately following the exposure", however the examiner noted that there are cases of delayed onset of hearing of hearing loss from noise exposure. The examiner noted that in cases where delayed onset of hearing loss occurs, the hearing loss presents within a few years after the exposure event and not decades later. The examiner specifically referenced a rat study done looking at damage to the ear post noise exposure, which found that "[a]lthough loss of synapses in the cochlear base is essentially immediate, synaptic loss also slowly spreads to the cochlear apex, where losses reach statistical significance by 16 months post exposure, when compared to age-matched controls". The examiner stated that this means that "while threshold shift is typically immediate, a hidden hearing loss can still exist which can cause a permanent delayed onset of hearing loss up to 16 months post exposure". The examiner noted that the Veteran did not raise concern of hearing difficulties until 19 years later, nearly 2 decades past his military career, and that given the amount of time that passed without complaint and with the history of career with noise exposure as a locomotive electrician it is less than likely caused by the military as functional difficulties with hearing would have presented themselves soon after military career and not after years of nonmilitary noise exposure. The Board finds the probative evidence of record is against finding that the Veteran's current claimed left hearing loss is related to his in-service noise exposure. The Board finds the August 2021 opinion to carry significant probative weight, as it was based on the pertinent evidence and provided an adequate rationale for its conclusions that is supported by the record. The Board does not find the October 2015 private medical opinion from Dr. K.P. to carry significant weight. Dr. K.P. specifically noted that the Veteran's service treatment records were not reviewed and based the opinion on not being able to rule out that significant threshold shifts occurred in service. Since the opinion from Dr. K.P. did not consider the Veteran's relevant service treatment records, the Board does not afford the opinion significant probative weight. Additionally, although lay persons are competent to report symptoms or other matters within their personal knowledge, and to provide opinions on some medical matters (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the specific matters of the etiology of a left ear hearing loss disability are complex medical matters that fall outside the realm of common knowledge of a lay person. See Clayburn v. West, 12 Vet. App. 488, 496-97 (1997) (holding that a veteran is not competent to relate currently diagnosed joint disease to the continuous post-service back injury). In this regard, such an opinion requires specialized medical knowledge. The Veteran is not shown to have the necessary training and expertise to provide a competent opinion as to the causes of a left ear hearing loss disability. As noted above, in some circumstances, certain diseases will be presumed to be related to service without a medical opinion, if other conditions are met chiefly that there is a diagnosis of the disease in question within one year of separation from service. In this case, while sensorineural hearing loss is considered a chronic disease subject to presumptive service connection, there is no evidence of a diagnosis within one year of the Veteran's 1994 separation. Without evidence of a diagnosis within one year of separation, presumptive service connection is not warranted. Based on the foregoing, the Board finds that service connection for a left ear hearing loss disability is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the finding that there is a causal relationship between the Veteran's left ear hearing loss and his active military service. As such, service connection for a left ear hearing loss disability is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, 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.