Citation Nr: 21070892 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 19-16 239 DATE: November 26, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's bilateral hearing loss began during active service or within one year of separation from service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 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 January 1962 to January 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision by a Department of Veteran's Affairs (VA) Regional Office (RO). In September 2019, the Board remanded the issues of entitlement to service connection for bilateral hearing loss and entitlement to service connection for tinnitus for further development. The issues were then returned to the Board. In April 2021, the Board granted entitlement to service connection for tinnitus and remanded the issue of entitlement to service connection for bilateral hearing loss. The grant of service connection for tinnitus is considered a full grant of benefits sought on appeal. As a result, the only issue currently before the Board is entitlement to service connection for bilateral hearing loss. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. "Service connection" means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active-duty service, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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). Certain chronic diseases, including sensorineural hearing loss, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury; or, for any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease. 38 C.F.R. § 3.310 (a)-(b); Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for bilateral hearing loss. The Veteran asserts that his military occupational specialty (MOS) as a radar operator resulted in his current hearing loss. Specifically, the Veteran asserts that the "noise of the equipment was a constant roar in the background" resulting in damage to his cochlear nerve. The Veteran stated the noise of the equipment, "caused permanent damage to the Veteran's ears which subsequently led to him developing hearing loss several years after separating" from service. See May 2019 VA Form 9. The first element of service connection is a current disability. The Veteran was diagnosed with sensorineural hearing loss during an August 2017 VA examination. This diagnosis was confirmed again during a November 2019 VA examination. The audiogram during both examinations also showed hearing loss for VA purposes. As a result, the first element of service connection has been met. In the April 2021 Board decision granting service connection for tinnitus, the Board found that the Veteran was exposed to acoustic trauma in service. Thus, the second element of service connection is met. The question remaining before the Board is whether the Veteran's current bilateral hearing loss is a result of his in-service hazardous noise exposure. As an initial matter, the Board notes that historically, when interpreting audiometric data from service treatment records, it is important to note that Service Departments changed from using American Standards Association (ASA) standards, to using International Standards Organization American National Standards Institute (ISO-ANSI) standards when providing audiograms beginning at some point between approximately January 1, 1967 and December 31, 1970, however, the conversion date was not consistent between all branches of the Armed Forces. Accordingly, if the standard used is not clearly indicated on the Service Department audiogram(s), it is presumed that prior to January 1, 1967 the ASA standard was used. For in-service audiograms conducted between January 1, 1967 and December 31, 1970, where the standard used is unclear, the data under both ASA and ISO-ANSI standards will be considered. For in-service audiograms conducted after December 31, 1970, it is presumed that the ISO-ANSI standard was used. In this case, the January 1966 separation audiogram was conducted prior to January 1, 1967. Accordingly, it is presumed that they were conducted using ASA units and no additional conversions are required for consideration. The Veteran's service treatment records are silent for any complaints of hearing loss or ear pain in service. The Veteran's January 1962 entrance examination does not indicate issues with his ears, drums, nor hearing generally. While no audiogram was recorded during the Veteran's January 1962 entrance examination, the Veteran's January 1966 separation examination showed no issues regarding his hearing or his ears. No hearing loss for VA purposes was recorded in service. The Veteran's VA outpatient records show he denied issues regarding hearing loss in November 2015 and January 2016. The first assertion of hearing loss found in the Veteran's record is in his April 2017 claim to benefits. The Veteran underwent a VA examination in August 2017. The examiner concluded the Veteran's bilateral hearing loss was not related to his active-duty service as there was no evidence of hearing loss in service. In August 2017, the Veteran submitted a power point presentation regarding progressive cochlear nerve degeneration after temporary noise induced hearing loss from Harvard Medical School. Additionally, in August 2019 the Veteran's representative included two article links asserting damage to the cochlear hairs and nerve can lead to hearing loss over time. The Veteran underwent an additional VA examination in November 2019. Here, the examiner again stated that the Veteran's current hearing loss was not a result of his active-duty service. The examiner stated that the Veteran did not show hearing loss at the time of separation from service. The examiner asserted that the available medical research from the "Noise and Military Service: Implications for Hearing Loss and Tinnitus" does not support the assertion of delayed onset hearing loss. Specifically, the examiner notes, "'the evidence from laboratory studies in humans and animals is sufficient to conclude that the most pronounced effects of a given noise exposure on pure-tone thresholds are measurable immediately following the exposure, with the length of recovery, whether partial or complete, related to the level, duration, and type of noise exposure.'" The examiner then notes 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.... based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur." The examiner then asserts that had the Veteran been exposed to acoustic trauma significant enough to cause hearing loss, there would have been some indication of trauma to the ears at the time of the exposure. The examiner explicitly stated that the Veteran's lay assertions to include the power point and additional articles were considered in providing this opinion. In summary, the examiner concludes that hazardous noise induced hearing loss, as the Veteran asserts is the case here, would not have begun later in life but rather would have begun at the time in which he was exposed. Two addendum opinions were obtained in September 2021. In the April 2021 Board decision, the examiner was instructed to provide an opinion as to whether the Veteran's bilateral hearing loss was related to his active-duty service. The Board also instructed the examiner to provide an opinion as to if the Veteran's bilateral hearing loss was caused by or aggravated by his service-connected tinnitus. In summary, the first September 2021 addendum examiner stated that as the Veteran did not show any signs nor symptoms of hearing loss at the time of exposure, there was no indication he experienced acoustic trauma significant enough to result in his current hearing loss. The examiner also stated that while tinnitus can interfere with an individual's ability to "concentrate or to hear actual sound" it does not cause hearing loss. The examiner concluded that the common belief among the medical community is that tinnitus does not cause hearing loss and as a result the Veteran's hearing loss is not related to his service-connected tinnitus. The second September 2021 addendum opinion also concurred in stating that there is no evidence that the Veteran's current tinnitus caused his hearing loss nor aggravated his hearing loss beyond the natural progression of the disease. The examiner reasoned that "hearing loss is a direct effect of inner and outer hair cell damage in the inner ear. Tinnitus does not cause damage to the inner ear." The April 2021 Board remand of this issue stated that the prior August 2017 and November 2019 VA examinations were inadequate as they relied on a lack of in-service hearing loss for the basis of their negative nexus opinions. However, the Board now finds the August 2017, November 2019, and September 2021 VA opinions of record are adequate to decide the claim when read together as a whole. The opinions were based on a repeated and thorough review of the record. The VA examiners considered the Veteran's VA treatment records, the Veteran's lay assertions, the literature submitted by the Veteran regarding cochlear nerve damage, and additional available medical literature. When read together, the rationales are clear, thorough, and based on the facts as presented by the record. Additionally, the Veteran is not asserting he experienced hearing loss in service as evidence by the May 2019 VA Form 9. Rather he is asserting the constant loud noise exposure experienced in service damaged his cochlear nerve leading to hearing loss later in life. The VA examiners have indicated that hearing loss due to noise exposure creates noticeable hearing loss at the time of damage, not nearly 50 years after separation from service. The Board finds that when read together, the August 2017, November 2019, and both September 2021 VA opinions are adequate and highly probative, as they provided a clear conclusion with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To the extent that the Veteran and his representative have argued that his hearing loss was related to his active-duty service, they are not shown to have the medical knowledge nor education necessary to competently address the etiology of hearing loss. Providing an opinion regarding the etiology of bilateral hearing loss is medically complex as it has multiple possible etiologies. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence of record. Finally, the Board observes that in August 2017 the Veteran submitted a power point from Harvard Medical School and in August 2019, the representative provided citations to several medical articles to support the general proposition that the Veteran's hearing loss is a result of cochlear nerve damage in service as a result of constant noise exposure. While full copies of the cited medical articles were not provided, the Board acknowledges that a medical article or treatise "can provide important support when combined with an opinion of a medical professional." Such a medical article or treatise evidence must, however, discuss generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). The power point and citations submitted by the Veteran and his representative were not accompanied by any probative opinion from a medical expert, nor were they specific to the facts of the Veteran's case. Accordingly, those articles are afforded low probative value. The available competent and probative evidence thus preponderates against finding manifestations sufficient to identify a chronic hearing loss in active-duty service, or within one year thereafter. Service connection is not warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. The record also does not reflect that the Veteran's bilateral hearing loss began in service nor did he report continuous symptoms of hearing loss since active-duty service. Thus, service connection is not warranted on the basis of continuity of symptomatology. 38C.F.R. §3.303(b). Additionally, service connection on a secondary basis is not warranted. As stated above, the first element of secondary service connection is a current disability. The Board has already established the Veteran has a current disability of bilateral hearing loss and thus the first element is met. As the Veteran is currently service connected for tinnitus, the second element of secondary service connection has been met. However, both of the September 2021 VA examiners stated tinnitus was not the cause of the Veteran's bilateral hearing loss nor did it aggravate his hearing loss beyond the natural progression of the disease. The second examiner also specifically stated that hearing loss is based on the inner and outer hair cell damage of the inner ears and tinnitus does not cause damage to that area. There are no additional assertions from the Veteran nor any additional medical evidence on this issue. As a result, secondary service connection for bilateral hearing loss as a result of his service-connected tinnitus is not warranted. 38 C.F.R. § 3.310. Furthermore, the Board has reviewed all medical and lay evidence, but finds the competent and probative nexus evidence of record weighs against a causal relationship between the Veteran's bilateral hearing loss and in-service noise exposure. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The claim is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, S. Conti 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.