Citation Nr: 21069301 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 13-30 111 DATE: November 18, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. REMANDED Entitlement to service connection for left knee degenerative joint disease (DJD) as secondary to service-connected right knee DJD is remanded. FINDING OF FACT The preponderance of the evidence is against finding that right ear hearing loss began during active service, or is otherwise related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had qualifying active-duty service from June 1981 to July 1983 with additional service in the reserves. In May 2021, the Board remanded the left knee DJD issue for further development, and the case has since been returned to the Board. The Board finds that the agency of original jurisdiction (AOJ) has not substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). SERVICE CONNECTION 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). Entitlement to service connection for right ear hearing loss The Veteran contends that his right ear hearing loss is the result of his active service. Specifically, in a March 2021 statement, the Veteran reported significant acoustic trauma from various guns, bombs, missiles, grenades, and mines exploding near her without protective equipment. The Veteran also reported she had sought treatment for hearing loss during service. Service treatment records (STRs) are silent for any audiometric findings of hearing loss for VA purposes. Nevertheless, acoustic trauma has been previously conceded. In November 2020, the Veteran attended a VA Hearing loss examination. The examiner diagnosed bilateral hearing loss. The examiner opined that the Veteran's right ear hearing loss was not at least as likely as not caused by or a result of an event in military service. The rationale provided was: Reviewed remand documents as well as past in and out of service exams. The veteran's MOS of military police does have a moderate probability for hazardous noise. Although there is no separation exam it has been documented that there is no positive permanent significant threshold shift from veteran's entrance exam in May 1981 to her first C&P audio exam in September 2011. The DoD describes an STS as an average change of plus or minus 10 dB at 2000, 3000, and 4000 Hz relative to the reference audiogram OR a change of 15 dB or more at any frequency 1000-4000 Hz. No significant permanent shift in hearing thresholds beyond test variability from entrance to an exam well past separation (in 2011) from active duty and reserves is objective evidence of no permanent auditory damage during service from conceded noise. The veteran did have her hearing tested in 2017 at Safety Harbor Hearing which revealed a flat mild hearing loss. This is not a typical configuration for noise induced hearing loss which is often described as a sloping sensorineural hearing loss in the high frequencies. According to an article titled "Current insights in noise-induced hearing loss: a literature review of the underlying mechanism, pathophysiology, asymmetry, and management options" in the Journal of Otolaryngology: Head and Neck Surgery, "Early or moderately advanced NIHL usually results in the typical 'boilermakers' notch at 4 kHz, with spread to the neighboring frequencies of 3 kHz and 6 kHz and some hearing recovery at 8 kHz. The fact that frequencies around 4 kHz are most affected by noise is most likely due to the resonance frequency of the outer ear/ear canal as well as mechanical properties of the middle ear" (2017). Although there is currently a hearing loss per VA criteria research studies have also shown that hazardous noise exposure has an immediate effect on hearing, and it is usually temporary at first. It does not have a delayed-onset, nor is it progressive or cumulative. It usually takes many incidents of temporary noise-induced hearing loss and tinnitus before it becomes permanent. References:1. Otolaryngology, Volume II, 3rd Edition, Paparella & Shumrick, WB Saunders Co. 1991, p. 1639. 2. 2005 finding from the Institute of Medicine's landmark study: Noise & Military Service: 3. NOISE MANUAL, (Fifth Edition, edited by Berger et al., AIHA Press2000, p.459). Therefore, it is the opinion of this examiner that it is less likely as not that the Veteran's hearing loss is a result of noise exposure while in the service. The examiner also noted that the Veteran's hearing loss preexisted service but was not aggravated beyond normal progression in military service. The rationale provided was: The present hearing loss at entrance (40 dB at 6k in the right ear) was not further aggravated on either the C&P exam in 2011 or 2019. No significant permanent shift in hearing thresholds beyond test variability from entrance to an exam well past separation (in 2011) from active duty and reserves is objective evidence of no permanent auditory damage during service from conceded noise. Therefore, it is the opinion of this examiner that it is less likely as not that the Veteran's hearing loss is a result of noise exposure while in the service. Nevertheless, the May 2021 Board remand found this examination inadequate as it did not consider the Veteran's documented reports of hearing difficulties during service. Subsequently, an addendum opinion was requested and provided in September 2021. The examiner opined that the Veteran's right ear hearing loss was less likely than not incurred in or caused by the exposure to hazardous noise during service. The rationale provided was: ... because the veteran's hearing was within normal limits at all tested frequencies in 2015, which is more than 30 years after her separation from active duty, it is less likely than not that her RIGHT ear hearing loss is a result of military noise exposure. One explanation for the difference in ears is that the veteran was right handed and according to an article "Prevention of Noise-Induced Hearing Loss from Recreational Firearms", the contralateral ear (in this case the veteran's left ear) is more likely to be impacted by the gunfire due to the head shadow effect, which is consistent with earlier and consistent hearing loss in her left ear only. The remaining evidence of record indicates continued complaints and treatment for right ear hearing loss but no discussion on its etiology. Based on the foregoing evidence of record, the Board finds that service connection is not warranted. There is no diagnosis of right ear hearing loss in the records between the end of the Veteran's active service in 1983 and the November 2020 VA examination, more than 35 years later. This delay, while not conclusive, weighs against the establishment of service connection. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). Further, while the Board notes the multiple treatment records indicating said history, none speak to the onset of right ear hearing loss. In addition, the Board notes that the evidence of record is silent for a medical opinion stating otherwise. While the Veteran believes her right ear hearing loss is related to an in-service injury, event, or disease, she is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that she has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). There is no showing of an in-service injury or disease to which the current right ear hearing loss may relate, and no basis shown for an award of benefits for chronic disability seen in the first post service year or based on continuity of symptoms. These facts provide no basis for an award of service connection for right ear hearing loss. In conclusion, the weight of the evidence is against the claim for service connection for right ear hearing loss. REASONS FOR REMAND Entitlement to service connection for left knee DJD as secondary to service-connected right knee DJD is remanded. The May 2021 Board remand, the AOJ was directed to obtain "an addendum opinion from an appropriate clinician regarding whether the Veteran's left knee disability is at least as likely as not proximately due to the service-connected right knee disability or aggravated beyond its natural progression by a service-connected disability." To that end, an addendum opinion was provided in September 2021. However, the Board finds that opinion inadequate. Indeed, the examiner, when providing a rationale for his negative opinion, repeatedly referred to causation instead of proximation and aggravation as required by the previous remand. Accordingly, an addendum opinion is required. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician, not to include the clinician who provided the September 2021 opinion, regarding whether the Veteran's left knee disability is at least as likely as not proximately due to the service-connected right knee disability or aggravated beyond its natural progression by a service- connected disability. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. A. Elliott II, 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.