Citation Nr: 21068575 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 15-21 047 DATE: November 10, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT Although the Veteran currently has a bilateral hearing loss disability, the evidence of record does not show that his hearing loss is related to service. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from August 1970 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision. In May 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). In a July 2019 decision, the Board denied the Veteran's claim for service connection for hearing loss. Subsequently, the Veteran appealed the denial of his claim to the United States Court of Appeals for Veterans Claims (Court/CAVC). In a July 2020 action, the Court vacated the Board's July 2019 decision and remanded the matter to the Board. The matter was subsequently remanded in November 2020, March 2021 and June 2021. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The evidence must show (1) the existence of a current disability, (2) an 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). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). For 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 absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability per 38 C.F.R. § 3.385 and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In this case, the Veteran contends that his bilateral hearing loss is due to his active service and the acoustic trauma experienced while serving in Vietnam. The Veteran's military personnel records also indicate he received a Combat Infantry Badge. In addition, the Veteran asserts that his hearing loss is related to the otitis media he experienced in service, and asserts that his service-connected tinnitus has the same etiology as his bilateral hearing loss. Turning to the evidence of record, an April 2011 VA examination is the first medical record indicating the Veteran has a hearing loss disability for VA purposes. As such, a current disability has been shown. Regarding the second element of service connection, in-service combat noise exposure has been conceded by VA based on the Veteran having served as a Light Weapons Infantryman and earned a Combat Infantry Badge while serving in Vietnam. As such, the second element of service connection has been met. The remaining question before the Board is whether there is a nexus between the Veteran's bilateral hearing loss disability and service. The Veteran's statements and service treatment records (STRs) reflect treatment for otitis media in 1971. However, the Veteran's February 1972 separation examination was negative for hearing loss or other ear issues. Based on the Veteran's 1972 audiometric examination, the Veteran's hearing thresholds, while slightly elevated, were not high enough to qualify as a disability for VA purposes. In addition, shortly after service, a June 1974 VA audiometric examination resulted in scores that did not meet the VA criteria for a hearing loss disability; the Veteran's speech recognition scores were 100 percent, and examiner further noted that the Veteran's ear drums were "clear" and "intact" with no other problems were found. The Veteran was denied service connection and filed another claim in August 2007. Findings of a March 2008 VA hearing loss examination indicate the Veteran's auditory threshold scores did not meet the criteria to be a disability for VA purposes. As such, a nexus opinion was not provided by the examiner, as the Veteran's condition, for VA purposes, was not a diagnosable disability. The Veteran was denied service connection and requested to reopen his hearing loss claim based on the findings of an April 2011 VA examination, which was found to constitute new and material evidence. The April 2011 hearing loss examination indicated that the Veteran has hearing loss for VA purposes. However, the examiner opined that the Veteran's hearing loss was less likely than not caused by his military service. The examiner stated that the conductive type and rising configuration of the Veteran's hearing loss was not typical of noise-induced hearing loss and was more typical of middle ear disease and Eustachian-type dysfunction. While the examiner also stated that the Veteran's hearing loss and tinnitus likely shared the same etiology, and the Veteran's tinnitus is currently service connected, the examiner stated that the Veteran's hearing loss was not typical of noise-induced hearing loss. Based on these findings, the Veteran's claim was denied in a July 2013 rating decision, and the Veteran submitted a notice of disagreement in July 2014. During the February 2015 VA examination, the examiner found that the Veteran's in-service otitis media was unlikely to have caused his current hearing loss, as the air bone and conduction results did not show a conductive component, which would indicate hearing loss in either ear would be due to middle ear or eustachian tube issues. The examiner was unable to reach further conclusions concerning the Veteran's hearing loss etiology and severity due to the Veteran's lack of cooperation and poor reliability. While the Board finds the examination adequate regarding the Veteran's otitis media, the remainder of examination report is given only limited probative weight. The Veteran then appealed his claim to the Board, and in June 2015, he submitted a private audiologist's examination and report in support of his claim. The examination showed that the Veteran did have hearing loss for VA purposes. Additionally, the audiologist stated that while the Veteran's mother had also suffered from hearing loss, she did not suffer from tinnitus. Conversely, the Veteran and his brother were both exposed to combat in Vietnam, and both complained of tinnitus and hearing loss. Consequently, the physician concluded that noise exposure, more likely than not, played a part in his hearing loss profile. During the December 2018 VA examination for hearing loss, the examiner explicitly concluded that the Veteran's hearing loss was less likely than not due to or the result of the Veteran's active service. The examiner's rationale was based on the lack of evidence for a decrease in hearing acuity during service. This examiner had access to the entirety of the Veteran's file and had no problems conducting the examination. Based on this examination, the Board denied the Veteran's claim of entitlement to service connection for bilateral hearing loss. As noted above, the Veteran appealed the Board's denial to the Court in July 2020. The JMPR indicated that the Board erred in not providing adequate reasons or bases for relying on the December 2018 VA examination opinion, particularly in light of the examiner not discussing whether the Veteran's bilateral hearing loss could be related to the otitis media reported in service. Pursuant to the July 2020 JMPR, the Board remanded the matter for an addendum opinion to address whether the Veteran's in-service otitis media could have caused his bilateral hearing loss disability. The Board obtained an addendum opinion in December 2020; however, it was found inadequate in a March 2021 Board decision as the opinion merely stated the Veteran's otitis media was diagnosed in service and cleared up several days later without addressing whether it could have caused the Veteran's bilateral hearing loss. Furthermore, the December 2020 opinion did not address the June 2015 private opinion as well as the April 2011 VA hearing loss exam that indicated the Veteran's diagnosed moderately severe hearing loss "most likely" has the same etiology as the Veteran's service-connected tinnitus. Pursuant to the March 2021 Board remand, an opinion was obtained in March 2021. However, in a June 2021 Board decision, this opinion was found inadequate as the examiner did not address whether the Veteran's otitis media could have caused the Veteran's bilateral hearing loss. As a rationale, the examiner stated the Veteran's in-service otitis media cleared up several days later, and the Veteran's separation examination showed normal hearing. Pursuant to the June 2021 Board remand, an addendum opinion was obtained in June 2021. The examiner provided a thorough narrative review of the relevant evidence of record and concluded that the Veteran's bilateral hearing loss was less likely than not related to service. The examiner stated that the Veteran's VA records, private treatment records, and lay statements were reviewed. The examiner first explained that the Veteran's separation audiogram from February 1972 showed no hearing loss for VA purposes in either ear, and in fact showed "very normal hearing thresholds." The examiner further explained that this evidence is important as it is the most objective piece of data that clinicians/physicians have to assess acoustic trauma, and hearing loss caused by acoustic trauma will manifest in close proximity to the noise exposure. The further one gets from the noise exposure, the less likely it is that the noise will cause the hearing loss. The examiner noted that the Veteran reported hearing loss in 1973 (correct year is 1974). However, as noted above, the 1974 audiogram did not show hearing loss. The examiner pointed out that the Veteran had some conductive loss shown in his 2008 VA examination. However, he still did not have hearing loss that was sensorineural in nature and considered a disability for VA purposes. The examiner emphasized the "fact that 36 years after leaving active duty he did not show evidence of a sensorineural hearing loss, the type that is seen with noise exposure, definitely concludes" that the Veteran's hearing loss is less likely related to noise exposure in service. The examiner went on to explain that had the conductive component been the result of an ear infection, including otitis media or externa, this would have been shown in the Veteran's February 1972 separation audiogram. The fact that the Veteran did not have any hearing loss upon separation shows a conductive loss was also not present. Regarding the Veteran's in-service and post-service reports of otitis media or ear infections, the examiner stated that the Veteran's ear infection in service "could not cause further infections." As such, any damage to the ears, including hearing loss, due to ear infections after service could not be related to the in-service otitis media or ear infection. Finally, the examiner addressed the relationship between tinnitus and bilateral hearing loss, as the Veteran asserted that his bilateral hearing loss has the same etiology as his service-connected tinnitus. The examiner acknowledged that tinnitus is often seen in the setting of hearing loss. However, they are not required to occur together. The examiner pointed out that a March 2008 VA examination, which found no hearing loss disability, showed the Veteran reported his tinnitus occurring 9 years prior, which would be approximately 1999, several decades after service, and with a "gradual onset." The examiner noted that this refutes the Veteran's later statement in 2015 regarding an onset of tinnitus in service. Although the Veteran has been service-connected for tinnitus, and an April 2011 VA examination suggested that tinnitus and hearing loss may have the same etiology, the examiner concluded that they are unrelated, as the reports regarding the onset of tinnitus are inconsistent in the record. In addition, while the 2015 private audiologist's opinion suggests that the Veteran's in-service noise exposure played a part in his resulting hearing loss, it does not state that his hearing loss at least as likely as not was caused by his active service. Furthermore, the private opinion did not provide any further explanation, supporting facts, or evidence for that conclusion. As such, the Board finds the June 2021 examiner's opinion particularly probative, because it is based on an accurate medical history and a thorough review of the record, and provides an explanation that contains clear conclusions and supporting data based on medical principles. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the Veteran's contentions that his hearing loss disability is due to in-service noise exposure. As noted above, the Board does not doubt the credibility of the Veteran's reports of being exposed to noise during service, as the Veteran can attest to factual matters of which he had first-hand knowledge and noise exposure is consistent with his circumstances of service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, as a lay person, the Veteran does not have specialized training sufficient to render such an opinion as to the etiology of hearing loss noted and diagnosed many years after the noise exposure. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The issue is medically complex, as it requires knowledge of the interpretation of complicated diagnostic medical testing. Id. at 1377 n.4. As the preponderance of the evidence is against the claim of entitlement to service connection for bilateral hearing loss, the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ariasaif, Mary 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.