Citation Nr: 21071399 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-14 578 DATE: November 30, 2021 ORDER Service connection for left ear hearing loss is denied. FINDING OF FACT The weight of the evidence is against finding that the Veteran's left ear hearing loss is due to any acoustic trauma he experienced during his active-duty service. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1976 to July 1976, with additional service in the National Guard and Reserves. The issue on appeal was previously before the Board in January 2019 and August 2021, and now returns for further appellate review. Service connection for left ear hearing loss is denied. The Veteran asserts that his left ear hearing loss is due to in-service noise exposure in a combat military occupational specialty (MOS), specifically a combat engineer. The Board notes the Veteran's documented active duty service was for a period of 3 months in the first half of 1976. The Veteran provided a medical opinion from a private audiologist in February 2016. The Veteran reported that his left ear had been greatly declining since discharge. The private audiologist noted that the Veteran served in the Army from 1976-1980, as a combat engineer. The audiologist indicated that they reviewed the Veteran's discharge records and noted that he was exposed to explosives, road graders, machine guns, and bull dozers. The audiologist noted profound sensorineural hearing loss in the left ear and concluded that it was more likely than not that the bilateral hearing loss was related to military noise exposure. The Veteran was afforded a VA examination in January 2017. An audiogram revealed hearing loss for VA purposes in the left ear. After an in-person examination and a review of the Veteran's claims file, the VA examiner provided a negative nexus opinion. The examiner explained that post-service testing showed normal hearing. The examiner relied on medical literature that stated noise induced hearing will not progress once it is stopped. In a March 2017 statement, the appellant noted that his hearing loss began in 1976 during his active-duty service. The January 2019 Board decision acknowledged the positive nexus opinion, but found that a rationale was not provided. Further, the Board pointed out that the private audiologist's opinion appeared to be predicated on service as a combat engineer from 1976 to 1980, although only one period of active duty for training in 1976 has been verified. The Board also found the January 2017 VA examiner's nexus opinion to be inadequate. The Board explained that the examiner relied solely on the lack of hearing loss during service, and did not address the Veteran's apparent lack of post-service noise exposure. The Veteran was afforded a VA examination in January 2020. An audiogram confirmed that the Veteran has significant hearing loss in his left ear. After an in-person examination and a review of the claims file, the examiner provided a negative nexus opinion. The examiner explained that there were no documented threshold shifts in entrance or separation examinations. The examiner noted an August 1980 audiogram that did not show hearing loss. The examiner acknowledged that the Veteran was exposed to acoustic trauma as a combat engineer, but also noted that there was no evidence to support a nexus that related the current hearing loss to military noise. The August 2021 Board decision found the January 2020 VA examiner's opinion to be inadequate. The Board first pointed out that the opinion was predicated on the absence of any documented hearing loss during service, which is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87 (1992). Second, the opinion did not explain why any threshold shift down, was not a significant threshold shift and why the absence of such, would tend to suggest or is dispositive that any current hearing loss disability is less likely than not related to in-service noise exposure. Last, the Board found that the explanation for the negative nexus opinion was inadequate, in that it did not fully explain the reasoning for its conclusion. The August 2021 Board decision remanded for an addendum VA medical opinion. The examiner was asked to provide an opinion on whether (1) the left ear hearing loss began in-service, (2) it manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) any delayed onset hearing loss of the left ear is related to an in-service injury, event, or disease, to include conceded in-service noise exposure. The examiner was also informed than an adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints; may not be predicated solely on the absence of medical studies or literature supporting causation; and if another etiology is more likely the cause of the left ear hearing loss, then fully explain. The August 2021 VA examiner noted a review of the claims file, to include the Veteran's active service from April 1976 to July 1976, the August 2021 Board remand, the May 2012, January 2017, and January 2020 VA examination reports, and the August 1980 audiogram. The examiner provided a negative nexus opinion. The examiner explained that when it comes to hearing loss, the audiogram is the most sensitive test that is available to assess for acoustic trauma. The examiner acknowledged that the Veteran was exposed to significant military noise. However, the exposure of noise does not indicate one will develop hearing loss, because it is based on the intensity of the noise, as well as the duration of the exposure. The fact that the Veteran did not have hearing loss in 1980, which was four years after active-duty service, provides strong evidence that the Veteran was not exposed to a significant acoustic trauma. Had there been significant acoustic trauma, hearing loss would have manifested in close proximity. The examiner acknowledged that a few studies have shown a delayed onset of hearing loss in animals, but has not been supported with human studies and is not considered an accepted medical position. The accepted position is that noise sufficient to cause hearing loss will cause the loss in close proximity to the noise exposure. The fact that four years after the end of the Veteran's period of active service, there was no hearing loss is strong evidence that it is less likely than not that the hearing loss is related to service. The examiner also noted that the Veteran reported an acute drop in hearing in the left ear in 1997. The examiner reported that this is known as sudden sensorineural hearing loss, which is not caused by noise exposure, although the exact etiology is not known. It is surmised to be associated with a viral infection. The examiner reported that his left ear is currently a "dead ear," as well, which is not consistent with noise exposure which leads to a down sloping hearing loss. (The Board notes that in the May 2012 VA examination report, the Veteran reported a bout of left ear pain and left ear hearing loss in 1997; thereafter, the pain went away, but the hearing did not return.) Here, the Board finds that the August 2021 VA examiner has provided an adequate medical opinion. The examiner provided the requested medical opinions, which were accompanied by a robust rationale, in support of those opinions. The examiner also did not predicate his medical opinion solely on the absence of an in-service diagnosis or solely on the absence of medical literature. Instead, the examiner relied on the audiograms of record, the Veteran's lay statements, and medical literature in explaining his opinion. Further, the examiner also fully explained the etiology of the Veteran's left ear hearing loss. As such, the Board finds that there has been substantial compliance with the August 2021 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). To the extent that the Veteran believes that his left ear hearing loss is due to military acoustic trauma, such a medical opinion requires medical expertise, and that determination cannot simply be made by lay observation alone; and the Veteran is not considered competent (meaning medically qualified by training or experience) to provide such a medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given the Veteran's assertions and medical evidence of record, a VA addendum opinion was ordered, which considered all of the evidence of record. The August 2021 VA examiner provided a negative nexus opinion; the Board finds that no additional evidence has been submitted with sufficient probative weight as to create reasonable doubt in the Veteran's favor on this issue. The Board acknowledges the positive evidence, to include the assumed in-service exposure to acoustic trauma based on the Veteran's combat MOS, the diagnosis of left ear hearing loss, and the private audiologist's positive nexus opinion. However, the private audiologist's opinion is inadequate, both because it did not address the hearing thresholds in the 1980 audiogram, or the report by the Veteran of sudden onset left ear hearing loss in 1997. While the private audiologist's opinion does provide a rationale, it appears that this medical provider was not aware of or informed of all of the Veteran's medical history with respect to his left ear hearing loss. 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. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Given such, the private opinion is afforded little probative weight. On the other hand, the August 2021 VA examiner's addendum opinion is afforded great probative weight because this examiner was able to review the Veteran's claims file and provided robust and well-reasoned rationales to support the stated opinions. While the Board has considered the Veteran's lay statements and assertions regarding the onset and etiology of his left ear hearing loss, that evidence is afforded less probative weight than the medical opinions. The Veteran is competent to the extent that he can provide information regarding what he experienced through his senses, but he is not competent (meaning medically qualified through training or expertise) to provide a medical opinion, such as determining either whether when he was diagnosed with left ear hearing loss or the etiology of his left ear hearing loss. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board acknowledges that the Veteran has provided statements regarding his in-service symptoms. However, such statements were not supported by the contemporaneous evidence of record, and the August 2021 VA examiner considered his assertions but explained that an audiogram taken four years after his active-duty service did not show any hearing loss, which was indicative that he did not have hearing loss during his active-duty service because the hearing loss would have manifested in close proximity to the significant noise trauma. Further, the medical literature noted that delayed hearing loss was a possibility in animals, but was not supported with human studies. Lastly, the examiner pointed to the fact that the Veteran's left ear was considered a dead ear, which was not consistent with noise exposure, but instead may be associated with a history of viral infection. Ultimately, the medical evidence in this case that is the most probative also weighs squarely against service connection. Consequently, the benefit-of-the-doubt rule does not apply, and service connection must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.