Citation Nr: 21069520 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-27 077 DATE: November 18, 2021 ISSUE Entitlement to service connection for bilateral hearing loss disability. ORDER Entitlement to service connection for bilateral hearing loss disability is denied. FINDINGS OF FACT Bilateral hearing loss disability was not manifest in service or within one year of separation and is not otherwise associated with service. CONCLUSION OF LAW Bilateral hearing loss disability was not incurred in or aggravated by service, and organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1985 to August 1989. His DD-214 shows his Military Occupational Specialty (MOS) as an F-14 system aircraft organization maintenance technician. This matter is before the Board of Veterans Appeals (Board) on appeal from a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in January 2020. A copy of the hearing transcript has been associated with the claims file. The Board observes that during the pendency of his appeal, an October 2018 Rating decision granted service connection for a right knee strain and continued the 10 percent evaluation for left knee degenerative joint disease with muscle atrophy. Next, a February 2020 Rating decision granted an increased rating for left knee degenerative joint disease with muscle atrophy, in addition to service connection for tension headaches, left knee instability, right knee limitation of extension, and several other disabilities. The Rating decision denied service connection for tinnitus. In June 2020, the Board favorably considered the Veteran's application to reopen the claim for service connection for bilateral hearing loss disability. The Veteran had testified at the hearing regarding a buzzing sound causing impairment, and that he worked around F14 jet launches. See January 2020 Hearing Transcript, pp. 8-9. The issue was ultimately remanded by the Board in June 2020. The Board also restored a 10 percent disability rating for left leg radiculopathy. Later, an October 2020 Rating decision implemented the restoration of a 10 percent disability rating for left leg radiculopathy based upon the Board's June 2020 Decision and Remand. Next, a February 2021 Rating decision granted service connection for major depressive disorder, claimed as depressive disorder. The RO assigned an evaluation of 70 percent effective January 17, 2020. The RO explained, "An evaluation of 70 percent is assigned from January 17, 2020, the date your claim for headaches was received as your mental condition has been associated with your service connected headaches, which were not service connected until January 17, 2020. (38 C.F.R. § 3.400,38 C.F.R. § 3.310)." The same rating decision also granted service connection for tinnitus, allergic rhinitis, and Dependents' Educational Assistance. Recently, a May 2021 Board decision and remand denied one appeal and dismissed another. This instant appeal was remanded for additional development. It is now back before the Board. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). At the January 2020 hearing, the VLJ left the record open for 90 days for the submission of additional evidence. See January 2020 Hearing Transcript, p. 2. The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to service connection for bilateral hearing loss disability To establish service connection a Veteran must generally show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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), Hensley v. Brown, 5 Vet. App. 155, 158 (1993). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For sensorineural hearing loss, as an organic disease of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307 (a)(3). 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 distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). We note that organic disease of the nervous system is a chronic disease, and as such, additional presumptive theories of entitlement are relevant in addition to direct service connection. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Under 38 C.F.R. § 3.303 (b), service connection may be established by demonstrating continuity of symptomatology. Continuity may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. The provisions of 38 C.F.R. § 3.303 (b) only apply to diseases recognized by VA as "chronic." See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.309(a). Chronic diseases that become manifest to a degree of 10 percent or more within one year of termination of active duty may be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The determination of whether a Veteran has a hearing loss disability is governed by 38 C.F.R. § 3.385. 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. VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. The Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). By way of history, the Service Treatment Records (STRs) include a July 1989 Report of Medical History from separation. It disclosed a clinically normal evaluation of the head, face, ears general, ear drums, and neurological system. In the contemporaneous Report of Medical History, the Veteran denied hearing loss and head injury. He wrote that he was in good health. Years later, the January 2015 Rating decision conceded acoustic trauma in service based upon the Veteran's MOS, in addition to current hearing loss for VA purposes. This was based upon a contemporaneous VA examination and the Veteran's DD-214. The issue remained a nexus to service. Next, the Veteran testified at the January 2020 hearing regarding a buzzing sound causing hearing impairment, and that he worked around F14 jet launching. See January 2020 Hearing Transcript, pp. 8-9. His Military Occupational Specialty (MOS) was an aircraft electrician. Id. at p. 9. He spent a lot of time on the flight line. The cable that comes back from the aircraft carrier following launch is very loud. He testified since then, "I have a problem hearing certain pitches in, in conversations. I hear a buzzing sound sometimes, it's --and when I'm --when that happens, I can't barely hear." Id. at pp. 9-10. He explained that although he worked on aircraft after separation, he wasn't working on turning around the aircraft, he was wiring them. So he did not have loud exposure after separation other than in the carrier setting in service. Id. at p. 11. One month later, in February 2020, the Veteran was afforded a new VA audiological examination. Unfortunately, the VA examiner indicated that test results were not valid for rating purposes. She explained: Veteran provided inconsistent responses to pure tone stimuli. He was re-instructed to push the button as soon as he heard a tone, but results are thought to reflect supra-threshold levels. I spoke to the veteran using the talk forward function of the audiometer at a level of 62 dB HL and he was able to hear and respond to questions. This would not be possible if his true hearing thresholds were based on test results he gave at today's evaluation, showing a moderate to severe hearing loss. Additionally, his SRT at 30 dB HL was much better than his original PTA. Later that year, in June 2020, the Board remanded the issue to afford the Veteran a new VA audiological examination. The Board observed that the February 2020 VA audiological examination with medical opinion is phrased in terms of one specific incident of exposure to a loud noise. The Veteran's theory of entitlement is based upon his MOS and innumerable incidents of noise exposure in service for several years. Next, the Veteran was afforded a December 2020 VA audiological examination, uploaded to the claims file along with a series of examinations in January 2021. The word discrimination score was not available for either ear. The VA examiner indicated a diagnosis of sensorineural hearing loss in the right ear and normal hearing in the left ear. The VA examiner ultimately indicated negative nexus opinions for both ears. The rationale for the right ear reads: Veteran's MOS listed as aircraft maintenance technician concedes hazardous noise exposure. STRs are silent for hearing loss from enlistment to separation period, pure tone thresholds are within normal limits bilaterally from enlistment to separation exam dated 08/21/1985 and 07/19/1989 respectively without a significant shift in thresholds in either ear. It is less likely than not that the veterans hearing loss was caused by a result of military noise exposure. For the left ear, the VA examiner concluded, "Pure tone thresholds are within normal limits today for the left ear." In May 2021, the Board discussed that the December 2020 VA audiological examination is incomplete. It does not include a speech discrimination score. In addition, VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Board reasoned that the medical opinion does not fully explain the negative nexus opinion in light of conceded hazardous noise exposure, Hensley, and diagnosed sensorineural hearing loss in the right ear. Hensley, supra. Moreover, a medical opinion is adequate when it is based upon consideration of the Veteran's prior medical history and examinations, and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). The issue was remanded to obtain a new VA examination. (Continued on the next page.) Recently, the Veteran was afforded a May 2021 VA audiological examination. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follow: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 25 35 LEFT 15 15 10 15 15 The average decibel loss is 20 in the right ear. The average decibel loss is 14 in the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 percent in the left ear. The VA examiner opined that use of the word recognition score was appropriate for this Veteran. The VA examiner opined that the test results are valid for rating purposes. Next, the VA examiner rendered a negative nexus opinion, implicitly encompassing all theories of direct and presumptive service connection. The VA examiner reasoned: The left ear hearing is within normal limits with excellent word recognition and the right ear hearing is within normal limits for VA disability purposes and also with excellent word recognition. There is no significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which is objective evidence of no permanent auditory damage on active duty from conceded noise. There is no report of complaint/treatment for hearing decrease in STRs or at separation. The Veteran's hearing tests in 2015, 2017 and 2020 that did not meet hearing loss criteria for VA disability purposes. The Veteran has a long history of recreational and occupational noise exposure post military service. Although noise exposure is conceded and the relationship of noise, auditory damage and hearing loss is well-established, auditory damage and hearing loss are not conceded based on noise alone. There must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. The evidence is against a nexus in this case, therefore it is less likely than not that the hearing loss is related to military noise exposure. The VA examiner indicated that there was sensorineural hearing loss in the right ear, and clinically normal hearing in the left ear. Additional VA treatment records are substantially the same. The Veteran contends that he is entitled to service connection for bilateral hearing loss disability. Specifically, he asserts that the hearing loss is a result of his duties as an aircraft maintenance technician and conceded hazardous noise exposure. The Veteran is competent to provide evidence of that which he experiences, including a history of noise exposure in service. The Veteran is competent to report difficulty hearing. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Nevertheless, his lay reports regarding the onset and etiology of hearing loss are outweighed by the more probative objective medical evidence. The most probative evidence are the contemporaneous treatment records, including the STRs, and the opinion of the May 2021 VA examiner. First, the STRs are clinically normal for the ears, ear drums, and neurological system. The Veteran denied hearing loss and wrote that he was in good health. Decades later, the Veteran filed his service connection claim in part for "BHL" on a VA 21-526 Veteran's Application for Compensation or Pension. It was received by VA in June 2014. The Board assigns substantial probative weight to the contemporaneous treatment records and the Veteran's claim for service connection. Second, the Board also assigns substantial probative weight to the comprehensive opinion of the May 2021 VA examiner. The VA examiner provided a summary of the objective evidence on page 5 of 13 of the Disability Benefits Questionnaire (DBQ), which we incorporate by reference. The VA examiner wrote in part, "There is no significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which is objective evidence of no permanent auditory damage on active duty from conceded noise." Next, the VA examiner reviewed the entire claims file, and provided detailed reasons and bases in forming a medical etiology opinion. The VA examiner arrived at a negative nexus opinion encompassing all theories of entitlement. The VA examiner carefully considered: The Veteran's hearing tests in 2015, 2017 and 2020 that did not meet hearing loss criteria for VA disability purposes. The Veteran has a long history of recreational and occupational noise exposure post military service. Although noise exposure is conceded and the relationship of noise, auditory damage and hearing loss is well-established, auditory damage and hearing loss are not conceded based on noise alone. There must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. We find this to be highly probative. Regarding direct or presumptive service connection, we find that the Veteran did not have the characteristic manifestations necessary to identify the disease entity in service. It was not manifest in service and is not attributable to service. There is no probative evidence to the contrary. In addition, the Board finds that while competent to report what he has been told by medical treatment providers and to report difficulty hearing, the Veteran's own lay opinion regarding identifying a potential chronic disease entity, such as organic disease of the nervous system, pales in probative weight when compared to the objective medical evidence of record. In other words, the Board acknowledges the Veteran's sincere belief regarding the etiology of sensorineural hearing loss, but this is outweighed by the contemporaneous treatment records and VA medical opinion applying the examiner's medical expertise. The evidence establishes a remote onset of bilateral hearing loss disability, including any manifestations as an organic disease of the nervous system, several decades after discharge and unrelated to events in service. 38 C.F.R. §§ 3.303, 3.307, 3.309. We have considered Hensley and 38 C.F.R. § 3.385, as requested in the Informal Hearing Presentation (IHP). There is no probative evidence to the contrary. Therefore, service connection on a direct or presumptive basis for bilateral hearing loss disability is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching this conclusion, the Board finds that the preponderance of the evidence is against the claim. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Bodi, 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.