Citation Nr: 21067115 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 19-13 447 DATE: November 3, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran's hearing loss was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the current bilateral hearing loss disability is not otherwise etiologically 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; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 23, 1966 to September 22, 1969, in the United States Army and received an honorable discharge. His military service records indicate he served as a Wheeled Vehicle Mechanic. The agency of original jurisdiction (AOJ) determined this occupation has a high probability of hazardous noise exposure. Therefore, exposure to hazardous noise during service is conceded. On November 13, 2017, the VA received a form VA 21-526EZ claim from the Veteran seeking service connection for bilateral hearing loss. The VA conducted a compensation and pension (C&P) examination on December 4, 2017. On January 2, 2018, the VA notified the Veteran of its decision denying his claim. On April 25, 2018, the VA received a VA Form 21-526EX from the Veteran seeking reconsideration. The Veteran also submitted a medical opinion from a private treatment facility. Another VA C&P examination was conducted on May 31, 2018. On June 26, 2018, the VA notified the Veteran of its decision again denying his claim. On October 11, 2018, the VA received a Notice of Disagreement from the Veteran. On March 27, 2019, the AOJ issued its statement of the case (SOC). On May 15, 2019, VA received a VA Form 9 requesting an appeal and the Veteran elected the option of a live videoconference hearing before a Veterans Law Judge at a local VA office. The hearing was scheduled for September 14, 2021. The Veteran was scheduled to appear before the Board for a videoconference hearing in September 2021. Although he and his representative were notified of the time and date of the hearing by letter dated July 2021, neither the Veteran, nor his representative appeared for the hearing as scheduled, neither requested a postponement, and neither provided an explanation for this failure to appear. As such, the Board considers the hearing request withdrawn. 38 C.F.R. § 20.704(d). 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). Service connection may also be granted if hearing loss occurred to a compensable degree within the year after active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Without meeting these requirements, service connection is not warranted. For purposes of analysis, the AOJ conceded both current hearing loss which meets the criteria for a disability under 38 C.F.R. § 3.385, and in-service noise exposure due to the Veteran's active-duty service as a Wheeled Vehicle Mechanic, an occupation with a high probability of hazardous noise exposure. See SOC dated Mary 27, 2019. However, service connection was denied because a causal relationship between the two was not established, and the current disability did not manifest itself within one year of discharge. Hearing loss is a chronic disease, and service connection may be established based on a continuity of symptomatology. 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Furthermore, a veteran is presumed to be in sound condition when examined and accepted into the service except for defects or disorders noted when examined and accepted for service. 38 U.S.C. §§ 1111, 1137. In the 1960s, the military changed its standard for reporting audiograms. Prior to 1967, military audiometric results were reported in American Standards Association (ASA) units; VA used ASA units prior to July 1966. However, in July 1966, VA adopted International Standards Organization American National Standards Institute (ISO-ANSI) standards. Historically, the Board has considered that since the military adopted ISO-ANSI standards as of November 1, 1967, any military audiograms conducted prior to November 1967 would be converted from ASA to ISO-ANSI units. However, recent historical research has revealed that the conversion date of November 1, 1967, may not have been consistent among all military branches. Therefore, unless it can be determined by looking at the audiogram whether it was conducted using ASA or ISO-ANSI standards, the Board's policy is to assume that service department audiometric test results prior to January 1, 1967, were reported in ASA standards, and that audiometric test results since December 31, 1970, were reported in ISO-ANSI standards. For the period between January 1, 1967 and December 31, 1970, the Board will consider the data under both ASA and ISO-ANSI standards unless the standard used is clearly indicated. In converting from ASA to ISO-ANSI, the following conversions are used: HERTZ 500 1000 2000 3000 4000 ADD 15 10 10 10 5 Here, the Veteran entered active duty on September 23, 1966. An enlistment examination was conducted on April 12, 1965. The Veteran was found qualified for enlistment. The enlistment examination does not note whether the ASA or ISO-ANSI standard was used for testing the Veteran's hearing. Audiological evaluation showed pure tone thresholds, in decibels, as follows, with the conversion from ASA to ISO-ANSI standards noted in parentheses: HERTZ 500 1000 2000 3000 4000 6000 RIGHT -5 (10) -5 (5) 5 (15) 45 (55) 45 (55) 35 (40) LEFT 10 (25) -5 (5) 5 (15) 45 (55) 50 (60) 55 (60) Under 38 C.F.R. § 3.385, impaired hearing will be considered a disability for purposes of laws administered by VA when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 400 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. The enlistment examination conducted on April 12, 1965, depict at the 3,000 and 6,000 Hertz frequencies, the findings are crossed out on the report. In addition, the examination report itself contains notations of "recheck hearing' and "defective hearing," both of which are also crossed out. The examination report also reflects that the Veteran was initially found to be "not qualified" for service due to defective hearing. That finding, however, is also crossed out and the examiner subsequently checked the box finding that the Veteran was qualified for enlistment. Unfortunately, there are no additional records which confirm that the Veteran's hearing was retested or clarify why the examiner crossed out the audiogram results and the findings of not qualified due to defective hearing. Granting the Veteran, the benefit of the doubt, however, the Board finds it likely that his hearing was, in fact, retested as indicated and that the examiner concluded based on this retest that the Veteran did not exhibit defective hearing on entry and was therefore, fit for enlistment. Additionally, the examination report itself includes a stamp indicating on September 23, 1966, the Veteran was rechecked, and no additional defects were discovered, and the Veteran was fit for military service. Under these circumstances, the Veteran is entitled to the legal presumption of sound condition at entry. In the Veteran's separation examination conducted on July 29, 1969, the Veteran's hearing was tested and found normal. The `audiological evaluation showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) -- -5 (0) LEFT 0 (15) 0 (10) 0 (10) -- -5 (0) On a report of medical history completed in connection with his separation examination, the Veteran reported a history of ear trouble. Neither the Veteran nor the examiner elaborated on this report. The Veteran's ears were noted to be normal on clinical evaluation. Furthermore, the Veteran's hearing tested in the normal range on his separation examination, which is objective evidence of no permanent auditory damage resulting in hearing loss on active duty from the conceded noise exposure. On September 30, 2013, the VA received a form VA 21-526EZ filed by the Veteran seeking service connection for diabetes. No mention was made of the Veteran's hearing loss in this claim. The Veteran filed for service connection for bilateral hearing loss approximately four years later. Hearing loss is a chronic disease, and service connection may be established based on a continuity of symptomatology. 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Furthermore, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See 38 U.S.C. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). Here, as found above the Veteran was sound upon entry into the military, and the Veteran's hearing tested normal upon separation. The Veteran did not present any medical or lay evidence that covers the approximately forty years since his discharge establishing continuity of symptomatology for bilateral hearing loss. The Veteran did submit a medical opinion from a private treating audiologist dated April 11, 2018. In this opinion, the audiologist states the Veteran has a long history of sensorineural hearing loss. After summarizing the Veteran's military experience, he concludes the Veteran's hearing loss is more likely than not related to his military service. Regarding the Veteran's normal hearing noted at separation, he opines that he is not certain whether a pure tone test was conducted and that otoacoustic emissions testing which was not conducted might have revealed outer hair cell damage within the cochlea not detectable on a basic audiogram. He does not opine whether the Veteran currently or has ever had outer hair cell damage within the cochlea. Furthermore, military service records indicate an audiogram test was conducted during the separation exam and the results were recorded, which is objective evidence of no permanent auditory damage in service resulting in hearing loss from the conceded noise exposure. The VA conducted a C&P audiological examination on December 4, 2017. The examiner found sensorineural hearing loss bilaterally between 500-4000 HZ. The examiner reviewed the Veteran's C-file and referenced the general aging process. The examiner also noted the Veteran's post service occupations included driving trucks for several years and a significant family history of hearing loss. The examiner ultimately concluded that the Veteran's current hearing loss was less likely than not caused by or was the result of the Veteran's exposure to excessive noise levels in service. A second C&P audiological examination was conducted on May 31, 2018. The examiner again found sensorineural hearing loss bilaterally between 500-4000 HZ. This examiner opined that the Veteran's bilateral hearing loss was less likely than not caused by the Veteran's active-duty service. He based his opinion on the Veteran's normal hearing separation examination, no evidence of acoustic trauma at the time of discharge in 1969, and a lack of treatment and/or complaints of hearing loss in the fifty years since the hazardous noise exposure ceased. The examiner also cited to a study conducted by the Institute of Medicine: Noise and Military Service: Implications for Hearing Loss and Tinnitus. They found "laboratory studies in humans and animals ... sufficient to conclude that the most pronounced effects of a given noise exposure on pure-tone threshold are measurable immediately following the exposure." In his opinion, he referenced a lack of longitudinal studies to determine whether permanent noise-induced hearing loss can develop long after cessation of the hazardous noise exposure. In reaching its ultimate determination, the Board considered the decision of the United States Court of Appeals for Veterans Claims (Court) in McCray v. Wilkie, 31 Vet. App. 243 (2019). In McCray, the Court discussed the Institute of Medicine (IOM) report cited by the July 2020 VA examiner, noting that it had concluded, in part, that based on current knowledge of cochlear physiology there was no sufficient scientific basis for the existence of delayed-onset hearing loss. The IOM report also indicated that there was not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure, and that definitive studies to address this issue have not been performed. The Court then held that if the Board finds that a medical text that serves as the basis for a medical opinion contains apparent qualifiers or contradictions, or if the veteran raises the issue or it is reasonably raised from review of the evidence of record, the Board must address that issue and explain whether those aspects of the medical text diminish the probative value of the medical opinion evidence or render the opinion inadequate, and if not, why not. Id. at 257. The Board acknowledges that the VA examination conducted on May 31, 2018, relied in part, on the 2005 IOM report as a basis for providing a negative opinion, and the 2005 IOM report has qualifying statements, as noted by McCray. The Board finds this does not render the entire opinion inadequate or diminish its probative value. The Board notes that the IOM report acknowledged that there was insufficient evidence to address the question of delayed onset noise-induced hearing loss. Nevertheless, the IOM report's own finding that, based on the anatomical and physiological data available on the recovery process of noise exposure, it is unlikely that delayed hearing loss effects occur is probative. This statement tends to show that the limitation was considered, but the IOM was confident in the available data (anatomical and physiological) to make a conclusion utilizing a strongly worded term (unlikely). Indeed, the committee noted its understanding of the mechanisms and processes involved in the recovery from noise exposure as it suggested a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely. The Board finds that the use of the word extremely also lends much support to finding that the report retains its probative value and is not inadequate. The Board further notes that no opposing studies or other contradictory medical evidence has been submitted in this appeal. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to present and support a claim for benefits and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). Moreover, the McCray court referenced a medical text's qualifying or contradictory aspects as one factor on a non-exhaustive list that is relevant to the Board's evaluation of the probative value and adequacy of a medical opinion. McCray, 31 Vet. App. 243. Here, the VA examination conducted on May 31, 2018, only partially relied on the findings of the 2005 IOM report and discussed other factors that led to their ultimate conclusions. Thus, the VA examiner did not rely entirely on the IOM report in forming their conclusions but, instead, considered all relevant facts in this case. His opinion and rationale are the most probative evidence of record on the etiology of the Veteran's bilateral hearing loss. Reading the examiner's opinion as a whole, the examiner relied on accurate facts, expressly considered the Veteran's in-service noise exposure, described the Veteran's disability in sufficient detail, related medical literature to the Veteran's specific facts, and provided a reasoned medical explanation that connected their conclusion to supporting data. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Both enlistment and separation audiological examinations show relatively normal hearing in both ears with no significant threshold shift during service. The Veteran's most pronounced effects of likely exposure to hazardous noise in service would have occurred immediately following the exposure as the study suggests, and not fifty years later after a post military service career as a truck driver, significant aging of the Veteran, and significant family history of hearing loss. The Board notes that the absence of a hearing disability during service is not in and of itself fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, evidence of current hearing loss and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). In this case, the preponderance of the evidence is against finding that the Veteran's current hearing loss disability is related to service. In that regard, the Board assigns great probative value to the December 4, 2017 and May 31, 2018 C&P examinations. In both, the audiologists reviewed the Veteran's claims file in its entirety and considered the Veteran's reported history. After considering the record, including in service audiometric findings, the audiologists concluded that the Veteran's current hearing loss was not causally related to his active-duty service. The Board assigns less probative value to the private treating audiologist's opinion dated April 11, 2018. In this opinion, the audiologist states that he is not sure a pure tone test was conducted during the Veteran's separation examination and speculates that the Veteran may have had outer hair cell damage within the cochlea not detectable on a basic audiogram at separation. He does not indicate whether the Veteran actually has or has ever had outer hair cell damage within the cochlea. He additionally fails to provide credible evidence that the Veteran actually suffered acoustic trauma in service. While the His opinion is not based on audiometric findings or a reasonable interpretation of the in-service audiometric findings, but instead is based on speculation. Therefore, a medically sound basis for attributing the Veteran's current hearing loss to his service is not found. Thus, the Board finds that the weight of the evidence does not support a finding of continuous symptoms since active duty. Furthermore, the Board finds that bilateral hearing loss was not shown at a compensable level in service or within one year following separation from service. A sufficient nexus was not established linking the Veteran's current bilateral hearing loss to his active-duty service, and service connection is not warranted. Therefore, the weight of the evidence is against granting service connection for bilateral hearing loss and the claim is denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Danette Mincey Veterans Law Judge Board of Veterans' Appeals 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.