Citation Nr: 21067219 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 13-05 846 DATE: November 3, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss did not manifest in service or within one year thereafter and is not otherwise causally or etiologically related to his miliary service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in active service, nor may sensorineural hearing loss be presumed to have been so incurred. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113; 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 May 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the case in May 2015 to schedule the Veteran for a hearing. In July 2016, he testified at a hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. Thereafter, the Board remanded the case for further development in September 2017, August 2019, and November 2020. That development was completed, and the case has since been returned to the Board for appellate review. The Board notes that the appeal had also included the issue of entitlement to service connection for tinnitus. However, during the pendency of the appeal, the agency of original jurisdiction (AOJ) granted service connection for tinnitus in a June 2021 rating decision. The grant of service connection constitutes a full award of the benefits sought on appeal. See Graham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). As such, this issue is no longer in appellate status. See Grantham, 114 F.3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). In September 2021, the Veteran's representative submitted a waiver of the AOJ's initial consideration of additional evidence. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As organic diseases of the nervous system, including sensorineural hearing loss, are considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for bilateral hearing loss. The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of hearing loss. In fact, an April 1968 separation examination found his ears and drums to be normal, and an audiogram did not reveal hearing loss. The Veteran also denied having a medical history of ear trouble and hearing loss at that time. The Board notes that sensorineural hearing loss, nor manifestations sufficient to identify the disease's entities, was shown during the Veteran's military service. Rather, the hearing examinations performed during his active service were normal, and the Veteran denied having any history of ear trouble and hearing loss during that time period. The pertinent regulations require that manifestations are "noted" in the service records and that is not case in this instance. Therefore, while currently diagnosed sensorineural hearing loss is a chronic disease under 38 C.F.R. § 3.309(a), no notations of the disease or any characteristic manifestations of sensorineural hearing loss has been shown in the service records. As such, service connection under 38 C.F.R. § 3.303(b) is not warranted, and sensorineural hearing loss may not be presumed to have been incurred in service. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309. The medical and lay evidence also does not show that the Veteran had bilateral hearing loss that manifested to a compensable degree within one year of his military service in May 1968. Indeed, the Veteran testified during the July 2016 hearing that he started noticing hearing problems in the mid-1970s. He also told the November 2017 VA examiner that his hearing loss was first noticeable with his wife about 20 years earlier. Nevertheless, the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability 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 Veteran has claimed that he had military noise exposure and that this was the injury sustained from which his hearing loss resulted. The Veteran is considered competent to relate a history of noise exposure during service, and there is no reason to doubt the credibility of his statements regarding his military noise exposure. In addition, the post-service medical records show that the Veteran has been diagnosed with bilateral hearing loss by VA standards. See 38 C.F.R. § 3.385. Thus, the remaining question is whether the Veteran's current bilateral hearing loss is related to his noise exposure in service. A March 2012 VA examiner opined that the Veteran's current hearing loss was less likely than not related to his military service. In so doing, she noted that his separation examination was normal and that there were no documented complaints. However, the examiner did not address whether the Veteran's current hearing loss could have had a delayed onset due to acoustic trauma from in-service noise exposure. Therefore, the Board finds that this VA examiner's opinion has limited probative value. A November 2017 VA examiner also opined that the Veteran's current hearing loss was not at least as likely as not caused by or a result of an event in service. In rendering the opinion, she noted that the Veteran had normal hearing at the time of his entrance and separation examinations and that there were no complaints of hearing loss documented in the service treatment records. She explained that research does not support the concept of delayed onset of hearing loss after thresholds are recorded as normal after noise exposure and cited to medical literature. The examiner also observed that the Veteran had an extensive amount of occupational noise exposure, some of which was performed without hearing protection. Although the November 2017 VA examiner's opinion was thorough and responsive to the prior remand directives, the Veteran's representative challenged the adequacy of the opinion in an August 2019 brief. Specifically, he asserted that the November 2017 VA examiner did not address recent medical treatises, which reveal that delayed onset hearing loss is possible. Therefore, the Board remanded the case for an additional VA medical opinion that addressed the additional evidence. Thereafter, a June 2021 VA examiner opined that the Veteran's bilateral hearing loss was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She acknowledged the Veteran's report of military noise exposure without hearing protection, but noted that his service treatment records documented him as having normal hearing without a significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which is objective evidence indicating that there was no permanent auditory damage in service. The examiner reviewed medical literature and stated that studies have shown that hazardous noise exposure has an immediate effect on hearing that is usually temporary at first. She commented that it does not have a delayed onset and is not progressive or cumulative. Thus, she found that Veteran's hearing test at the time of his separation accurately represented the effects of any hazardous noise exposure that were sustained during his military service and that there were no permanent effects of military noise exposure on his bilateral hearing sensitivity. The examiner explained that the exposure to hazardous levels of noise exposure during military service is insufficient in establishing a nexus with military service, as evidenced by a number of research studies. She noted that research has shown that hearing loss will not continue once noise exposure has stopped. She also considered ongoing research regarding "hidden hearing loss," which challenges a long-held assumption that damage to cochlear structures is reversible in temporary threshold shifts (TTS) following noise exposure. However, she noted that the researchers have identified the presence of ongoing neural degeneration in TTS even after hearing has returned to clinically normal values. Furthermore, in one of their articles, those researchers described the effects of early noise exposure on age-related hearing loss, suggesting some degree of "age-noise interaction" leads to a greater progression of hearing loss when preexisting declines in hearing sensitivity in the 3000 to 6000 Hertz range have been noted. However, the examiner stated that it cannot be reasonably assumed that the Veteran in this case suffered any of those potential subclinical effects, as there is no evidence to suggest that any threshold shift beyond normal test/retest variability occurred in service, particularly in the 3000 to 6000 Hertz range. The examiner further stated that it is also important to consider that, although animal research is now indicating a potential link between temporary changes in hearing threshold(s) and progressive cochlear degeneration, there remains no definitive ability to determine one individual's susceptibility to possible auditory damage due to noise exposure or the subsequent development of hearing loss. In addition, the examiner cited to medical literature indicating that the prevalence of hearing loss also increases with age (presbycusis) and that research has linked other health conditions to hearing loss, including hypertension, which the Veteran has in this case, and that the Veteran had additional noise exposure as a civilian. She further noted that research has shown that hearing loss will not continue once noise exposure has stopped, and although susceptibility to NIHL is quite variable, 10 years or more of exposure is generally required for significant hearing loss to occur. In this case, the Veteran had served two years in the military. There is no medical opinion otherwise relating the Veteran's current bilateral hearing loss to his military service. The Board affords substantial probative weight to the June 2021 VA examiner's opinion, as it is based on a review of the claims file, to include the Veteran's own statements and contentions, and an accurate characterization of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner reviewed relevant medical literature and provided a thorough rationale in support of her conclusions. The Board acknowledges that the Veteran's representative has cited to medical literature in support of the claim. However, treatise evidence alone is usually "too general and inconclusive" to establish a medical nexus. Sacks v. West, 11 Vet. App. 314, 317 (1998). A medical article or treatise can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least a plausible causality based upon subjective facts rather than unsubstantiated lay opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). In this case, however, the representative's citation to medical literature is general in nature, and no medical professional has related the information contained therein to the Veteran in this case. Indeed, there is no positive nexus opinion citing to or addressing the medical literature cited to by the Veteran's representative. Rather, the June 2021 VA examiner reviewed numerous research studies, including medical literature authored by the researchers identified by the Veteran's representative, and considered the concept of hidden hearing loss, yet she rendered a negative nexus opinion based on the facts of this case. The Board has also considered the Veteran's lay statements that his current hearing loss is related to his military service, to include his noise exposure therein. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of bilateral hearing loss, falls outside the realm of common knowledge of a lay person, particularly in light of the delayed onset of the disorder and the post-service noise exposure. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, even assuming that the Veteran is competent to provide such an opinion, the Board finds that the June 2021 VA examiner's opinion is more probative on this matter, as it was provided by a medical professional with knowledge, training, and expertise and is supported by a complete rationale based on such knowledge. The examiner also reviewed the claims file and considered the Veteran's reported history and lay statements as well as medical literature. Based on the foregoing, the Board finds that the Veteran's current bilateral hearing loss did not manifest in service or within one year thereafter and is not otherwise causally or etiologically related to his military service, to include his noise exposure therein. The preponderance of the evidence weighs against the Veteran's claim, and as such, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for bilateral hearing loss is not warranted. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. DeVerter, 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.