Citation Nr: 21070818 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 17-39 340 DATE: November 26, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence weighs against finding that the Veteran's diagnosis of bilateral hearing loss began during service or is otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United Stated Navy from September 1968 to September 1972. In March 2020, the Board remanded the appeal for further development. 1. Service connection for bilateral hearing loss The Veteran contends that his bilateral hearing loss is due to his period of service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board finds that, while the Veteran has a current diagnosis of bilateral hearing loss, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of bilateral hearing loss began during service or is otherwise related to an in-service injury, event, or disease. 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; when the auditory thresholds for at least three of the above frequencies 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. Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss or tinnitus become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be presumed for chronic diseases, enumerated under 38 C.F.R. § 3.309 (a), which are presumptively linked to service based upon continuity of symptomatology. See 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). At the outset, the Board notes that, based on the August 2015, August 2017, November 2020, and January 2021 VA examinations, a current bilateral hearing loss disability for VA purposes has been confirmed. Therefore, the first element of service connection has been met. As a current bilateral hearing loss disability has been confirmed, the Veteran must still meet the elements of an in-service incurrence and a nexus between the current disability and the in-service incurrence. The Veteran's DD 214 indicates that his MOS was aircraft mechanic, which VA has recognized as having a high probability of noise exposure. Therefore, the second element of service connection has been met. The Board notes that the Veteran's entry examination occurred in April 1968. It is not clear whether the thresholds were recorded using American Standards Association (ASA) units or ISO-ANSI units. Therefore, the Board will consider the recorded metrics under both standards, relying on the unit of measurement most favorable to the Veteran. The conversion to ISO units is shown in parentheses: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (15) 10 (20) X 0 (5) LEFT 10 (25) 0 (10) 5 (15) X 0 (5) An audiogram was also performed at separation in September 1972. The examination specifies that the standards are based on ISO units. Therefore, no conversion is necessary. The audiometric findings are below: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 5 LEFT 15 5 5 5 10 In a March 2016 Notice of Disagreement, the Veteran stated that during service, he worked on aircraft and helicopters. He reported that at the conclusion of his duty, he was told at his physical that he had sustained hearing loss from constantly being around the high pitched noise of the jet engines, and that if he stayed a few days for more tests, he could probably get partial disability. The Veteran stated that he was eager to get home. In a July 2017 VA Form 9, the Veteran noted that he has a hearing loss disability for VA purposes. He also noted that his MOS had a high probability of being subjected to noise exposure. The Veteran asserted that these facts should be enough to establish a service related connection. The Veteran went on to state that he has no other reason for his hearing loss. The Veteran reiterated that he could have received disability upon discharge, but he did not stay for testing at the time. The Veteran asserted that this information would not be in his military records. The Veteran further asserted that he believed it was improper to rely on his discharge examination records because he did not have the additional testing. The Board notes that the March 2020 Board decision found that the August 2017 VA opinion was inadequate for the purpose of adjudicating the claim. Therefore, no further analysis of this opinion is necessary. In a November 2020 VA examination, the examiner opined that it is less likely than not that the Veteran's current hearing loss disability is due to his period of service. The examiner noted that there was no significant permanent shift in hearing thresholds beyond test variability from the April 1968 entrance examination to the September 1972 separation examination, which is objective evidence of no permanent auditory damage on active duty from conceded noise exposure. The examiner stated that there was no report of complaint or treatment for hearing decrease in the service treatment records or at separation. The examiner went on to state that 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. The examiner noted that there must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. The examiner concluded that the evidence is against a nexus in this case, and therefore it is less likely than not that the hearing loss is related to military noise exposure. In a January 2021 VA addendum opinion, the examiner included further explanation, remarking that the Veteran's hearing was normal at entrance and normal range at separation. The examiner noted that the Veteran stated in his 2017 lay statement that he chose not to stay for additional testing after his separation examination to prove hearing loss at separation. The examiner reported that the Veteran indicated that his lay statement was then not considered as true because he did not stay for additional testing. The examiner explained, however, that the Veteran's hearing was WELL within the normal range at separation, which would have been reflected on a VA examination. The examiner noted that, according to available evidence, the Veteran did not seek any services until 2017, more than thirty years post discharge. Citing medical literature, the examiner reported that ears with large 3/6 kHz reductions in threshold sensitivity demonstrated age-noise interactions resulting in additional hearing loss profession primarily in frequency regions below the original noise-induced threshold shift. The examiner reported that similar changes with age were not seen in ears without these noise notches. The examiner stated that the data suggested that the adding process is different in a noise damaged cochlear than in a "pristine" one. The examiner went on to state that the most profound deterioration of the hearing between age 70 and 75 was found at 2kHz for both men exposed and not exposed to noise, but the deterioration was much more pronounced for the exposed group, the difference being 1dB per year. The deterioration was considerably less at 4kHz. Citing conflicting medical literature, the examiner reported, however, that threshold shifts over timespans of 3 to 11.5 years were not significantly different for individuals with and without reported noise exposure histories and did not have a significant effect on the rate of threshold changes in his subjects. The examiner stated that in light of such conflicting study results, the Institute of Medicine (IOM) (2005) stated that there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The examiner reported that the IOM panel concluded that based on their current understanding of auditory physiology, a prolonged delay in the onset of noise induced hearing loss was "unlikely". The examiner stated that based on the objective evidence (audiograms), there is no evidence on which to conclude that the Veteran's current hearing loss was caused by or a result of the Veteran's military service, including noise exposure. The report states "there is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure." The examiner noted that although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur. Citing a 2006 and 2009 study, the examiner reported that rodent studies suggested there could be neural changes related to noise exposure even when threshold shifts have resolved. The examiner noted that a 2009 study found that over exposure to intense sound can cause temporary or permanent hearing loss. The study reported that post exposure recovery of threshold sensitivity has been assumed to indicate reversal of damage to delicate mechano-sensory and neural structures of the inner ear and no persistent or delayed consequences for auditory function. In short, the studies argue that even if pure tone thresholds don't change, or if temporary threshold shifts resolved, noise exposure can affect other components of the auditory system which can have lasting effects. The examiner noted that the studies did not conclude that delayed onset changes in hearing sensitivity were observed in noise exposed ears. Also, they reported that direct correlation cannot be made, stating that hearing losses in humans are multifactorial with contributions from and potential interactions among numerous variables that can shape final outcomes. Any noise exposure through the Veteran's life, including traffic noise, smoke alarms, etc would have to be considered in addition to any military noise exposure. Many factors contribute to age-related hearing loss, including genetic predisposition and medical conditions. Citing additional literature, the examiner noted that whether animals can be used to predict human responses to drugs and other chemicals is apparently a contentious issue. However, when one empirically analyzes animal models using scientific tools, they fall far short of being able to predict human responses. Citing a different report, the examiner stated that, in short, generalizing findings from rodent studies to humans is fraught with difficulties and at best, should be undertaken with great caution. The examiner went on to note that aforementioned human studies suggesting more rapid progression of hearing loss in persons with histories of noise exposure included only older subjects who already had hearing loss that was ASSUMED to be the result of noise exposure. The examiner stated that the two studies do not specifically apply to this case regarding progression of hearing loss in a Veteran with confirmed normal hearing thresholds after exposure to military noise. The examiner stated that she has been unable to identify studies that evaluated the progression of hearing loss among subjects with confirmed normal hearing thresholds after confirmed histories of noise exposure. As a result of the conflicting findings noted above regarding delayed onset of noise induced hearing loss, and the questionable generalizability of rodent studies to humans, the examiner concluded that the 2005 IOM statement still holds true: There is no conclusive data supporting delayed onset noise induced hearing loss. Therefore, the examiner opined that it is less likely as not that the Veteran's current hearing loss disability is due to military noise exposure. The Board finds the November 2020 VA opinion and the January 2021 VA addendum opinion to be the most probative evidence of record because of a thorough review and consideration of the Veteran's service treatment records, VA medical records, the lay assertions presented, and the current medical literature. After review of the record, the Board finds that the evidence does not establish a nexus between the Veteran's current bilateral hearing loss and his period of service. The Veteran's service treatment records indicate normal hearing at entry, even considering ISO standard conversion, and normal hearing at separation. The Board acknowledges the Veteran's assertion that he was told he needed a more in-depth hearing examination. However, the Board notes that there is a presumption that government officials have properly discharged their official duties, and that clear evidence to the contrary is required to rebut this "presumption of regularity." Ashley v. Derwinski, 2 Vet. App. 307 (1992). Here, there is no indication that the specific measurements from the in-service hearing examination at separation were unable to properly indicate hearing loss. Moreover, the Board acknowledges that the Veteran is correct that he has met the first two elements of service connection by establishing a current hearing loss disability and in-service noise exposure. However, the November 2020 and January 2021 medical opinions indicate that the evidence is insufficient to establish a nexus between the Veteran's current hearing loss disability and his in-service noise exposure. As a nexus has not been established, the third element of service connection has not been met, and service connection for bilateral hearing loss is not warranted. While the Board has considered the Veteran's contentions that his hearing loss is due to his in-service noise exposure, the Veteran is not competent as a layperson to provide a medical opinion on the etiology of his hearing loss. Therefore, the Board assigns low probative weight to his statements regarding etiology. The Board has considered whether presumptive service connection is warranted for the Veteran's hearing loss disability. See 38 C.F.R. § 3.309. However, the record fails to show that sensorineural hearing loss was manifested to a degree of 10 percent within the one year following his service discharge in September 1972. Additionally, the Board does not find evidence of continuity of symptoms in the years following service, and service connection is not warranted on a presumptive basis or on the basis of continuity of symptomatology. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ford 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.