Citation Nr: 21069455 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 10-29 333 DATE: November 18, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT Bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service, did not manifest within one year of separation from active duty, and is not caused or aggravated by service-connected other specified trauma and stressor related disorder. CONCLUSION OF LAW The criteria for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1963 to August 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In November 2014, January 2019, February 2020, and August 2021, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected other specified trauma and stressor related disorder and/or nonservice-connected residuals of brain trauma. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that high frequency sensorineural hearing loss is considered an organic disease of the nervous system. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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 United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for 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 a hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. In documents of record and at his August 2014 Board hearing, the Veteran contends he developed bilateral hearing loss as a result of in-service noise exposure from artillery, mortars, tanks, explosions, jet aircraft, helicopters, and mess hall machinery while serving as an infantryman. Further, he was unable to wear ear plugs during training exercises as he would not have been able to hear commands. In the alternative, he claims that his bilateral hearing loss is caused or aggravated by his service-connected other specified trauma and stressor related disorder and/or his nonservice-connected residuals of brain trauma. However, as the latter disorder is not service-connected, further consideration of such theory of entitlement is not warranted as such is precluded as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). As an initial matter, the Board observes that the record, to specifically include a September 2020 VA examination, reflects that the Veteran has a current diagnosis of bilateral hearing loss as defined by VA regulations. 38 C.F.R. § 3.385. Additionally, his in-service noise exposure has acknowledged as evidenced by the fact that he is service-connected for tinnitus as a result of such exposure, and he is current service-connected for other specific trauma and stressor related disorder. Thus the remaining inquiry is whether the Veteran's current bilateral hearing loss is related to his acknowledged in-service noise exposure or such service-connected disability. In this regard, the Veteran's service treatment records (STRs) reflect that his hearing was within normal limits at his September 1963 entrance and July 1965 separation examinations, and are silent for any complaints, treatment, or diagnoses referable to hearing loss. However, the Veteran testified that, because his hearing loss has been gradual, he did not realize he had hearing loss until about 2008 when he underwent testing at the VA. As pertinent to the Veteran's claim for direct service connection for hearing loss, he underwent a VA examination in July 2009. At such time, the examiner noted the Veteran's in-service noise exposure to vehicles, aircraft, weapons fire, and explosions as well as his post-service noise exposure while working as a certified welder for 23 years and a water treatment plant operator for 19 years, and engaging in recreation activities of hunting. Additionally, after a review of the record, an interview with the Veteran, and an audiological examination, she opined that his bilateral hearing loss was less likely as not caused by military noise exposure. In support of such opinion, the examiner observed that audiometric testing on entrance and separation to service revealed normal hearing with no significant threshold shift, and the Veteran did not report hearing loss at the time of separation. In this regard, she explained that, since hearing loss due to noise exposure occurs at the time of exposure and not subsequently, the Veteran's current hearing loss cannot be linked to in-service noise exposure. In regard to the Veteran's claim for secondary service connection, an August 2019 VA examiner reviewed the record and opined that it was less likely than not that his bilateral hearing loss was proximately due to, the result of, or aggravated by his service-connected other specified trauma and stressor related disorder and/or residuals of brain trauma. In support of such opinion, she stated there was there was no contemporaneous evidence of such conditions in the Veteran's service treatment records or for many years thereafter, and found that his other specified trauma and stressor related disorder and/or residuals of brain trauma were more likely than not related to demyelinating disease of metabolic or environmental processes. However, the lack of documentation in the Veteran's STRs, or many years thereafter, or the etiology of his other specified trauma and stressor related disorder do not preclude a finding that such disorder caused or aggravated his bilateral hearing loss. Thus, as the August 2019 VA examiner did not properly address the Board's inquiries regard secondary service connection, the claim was remanded for an addendum opinion. In September 2020, a VA examiner reviewed the record and opined that the Veteran's bilateral hearing loss was less likely than not a result of his military service. As rationale, he stated the Veteran's hearing at time of entrance and separation were within normal limits, and, according to the American College of Occupational Medicine Noise and Hearing Conservation Committee, "a noise induced hearing loss will not progress once it is stopped." The examiner further opined that the Veteran's bilateral hearing loss was less likely than not proximately due to, the result of, or aggravated by his service-connected other specified trauma and stressor related disorder. In support thereof, he then stated that any opinion regarding a connection between the Veteran's bilateral hearing loss and such disorder would be based on speculation as such was not supported in the medical records or on current examination, and "thus no opinion provided." Consequently, as such is essentially a non-opinion, the Board again remanded the case to obtain an addendum opinion. In September 2021, a VA examiner reviewed the record and opined the Veteran's bilateral hearing loss was less likely than not proximately due to, the result of, or aggravated by his service-connected other specified trauma and stressor related disorder. As rationale, he stated that it was medically well known that hearing loss is not caused or aggravated by, or a symptom of, trauma or stressor-related disorders. The Board affords great probative weight to the July 2009 and September 2020 VA examiners' opinions as to direct service connection and the September 2021 VA examiner's opinion as to secondary service connection as such considered all of the pertinent evidence of record, to include the Veteran's statements, his relevant medical history, and known medical principles, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Notably, there is no medical opinion to the contrary. The Board has also considered the Veteran's statements that his bilateral hearing loss is related to his in-service noise exposure and/or to his service-connected other specified trauma and stressor related disorder; however, as a lay person, he does have the requisite training and experience necessary to address such a complex medical matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of such disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship as it requires the administration and interpretation of audiological testing, and knowledge of the impact noise and/or a psychiatric disability has on the inner workings of the ear. Thus, such may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Consequently, the Veteran's opinion as to the etiology of his bilateral hearing loss is afforded no probative weight. Furthermore, the evidence of record fails to demonstrate that bilateral hearing loss manifested to a compensable degree within one year of the Veteran's separation from active duty. In this regard, as noted by the July 2009 and September 2020 VA examiners, his separation examination revealed normal hearing bilaterally, and he did not report hearing loss at such time. Further, the Veteran has not reported a continuity of symptomatology of such disorder; rather, as noted previously, he indicated that his hearing loss has been gradual and he did not realize he had hearing loss until about 2008. Based on the foregoing, the Board finds presumptive service connection for bilateral hearing loss is not warranted. In conclusion, the Board finds bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service, did not manifest within one year of separation from active duty, and is not caused or aggravated by service-connected other specified trauma and stressor related disorder. Consequently, service connection for such disorder is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Kelly, 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.