Citation Nr: 21071410 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-41 269 DATE: November 30, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's current hearing loss disability is etiologically related to his active-duty service or was caused or aggravated by his service-connected residuals of a traumatic brain injury (TBI). CONCLUSION OF LAW Service connection for bilateral hearing loss is not warranted. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who had active-service from October 1971 to October 1974. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2014 Department of Veterans Affairs (VA) rating decision. In November 2018 a Board hearing was held before a Veterans Law Judge (VLJ) who is no longer with the Board. In November 2020 and June 2021, the matter was remanded for additional development. [A May 2021 letter informed the Veteran that the VLJ who conducted the November 2018 hearing is no longer at the Board, and offered him another Board hearing before a VLJ who would decide his appeal (indicating that if he did not respond to the letter within 30 days, it would be assumed that he did not want another Board hearing. He did not respond.] Service Connection Service connection is warranted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To substantiate a claim of service connection there must be competent evidence showing: (1) the existence of a claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present claimed disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases (to include sensorineural hearing loss (SNHL) as an organic disease of the nervous system) may be presumed to be service connected if manifested as chronic in service or to a compensable degree within a specified period after service (one year for SNHL). 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For chronic disease listed in 38 C.F.R. § 3.309(a) service connection may be established by showing continuity of symptomatology. 38 C.F.R. § 3.303(b); See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Secondary service connection may be established for a disability which is proximately due to, or the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. To substantiate a claim of secondary service connection, the record must show (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) that the already service-connected disability caused or aggravated the disability for which service connection is sought. Wallin v. West, 11 Vet. App. 509 (1998). Under 38 C.F.R. § 4.85, hearing loss disability must be established by specified audiometric studies. Under 38 C.F.R. § 3.385 hearing loss disability (for VA compensation purposes) is defined as existing when audiometry in the frequencies of 500, 1000, 2000, 3000 and 4000 hertz finds a puretone threshold of 40 decibels or higher at any of those frequencies; when the puretone thresholds at 3 of the specified frequencies are higher than 25 decibels; or when speech discrimination by Maryland CNC list is less than 94 percent. The Veteran has asserted that his bilateral hearing loss is related to his active-duty service, to include as due to exposure to drill sergeants yelling in his ear and to weapons fire without use of hearing protection. Alternatively, he has asserted that his bilateral hearing loss is secondary to his service-connected residuals of TBI (service-connected as incurred in a motor vehicle accident (MVA) in service. At the November 2018 Board hearing, the Veteran testified that he started to have temporary hearing loss during his active-duty service that worsened over the years. He testified that he had occupational noise exposure after his active-duty service, but he always wore hearing protection. The Veteran's MOS was fiscal clerk (with a supply company). While he is not shown to have been exposed in service to the high intensity-level of noise associated with service occupations such as in artillery, engine repair, or demolitions, it may reasonably be conceded, and is not in dispute, that during the Veteran was exposed some hazardous level noise during his weapons training on active-duty, as alleged. It is also not in dispute that the Veteran now has a bilateral hearing loss disability. Audiometry on March 2014 VA examination found that puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 50 40 55 60 65 LEFT 45 50 45 50 60 Speech discrimination (by Maryland CNC list) was 82 percent in the right ear and 90 percent in the left ear. Audiometry on March 2020 VA and March 2021 VA examinations continued to show a hearing loss disability, and what remains necessary to substantiate this claim is competent evidence that the Veteran's current bilateral hearing loss disability is etiologically related to (was incurred in) his service, to include as due to exposure to noise, or was caused or aggravated by his service-connected TBI. The Veteran's service treatment records (STRs) are silent regarding hearing loss. On September 1971 service entrance examination, audiometry puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 LEFT 5 0 0 0 In medical history at the time, he denied having any hearing loss or ear trouble. In September 1972, he was involved in a MVA in which he sustained a TBI. Hearing loss was not then reported or noted. On October 1974 service separation examination, audiometry puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 10 10 10 LEFT 5 5 5 10 5 The Veteran's postservice medical records do not note any complaints of hearing loss for many years after his separation from active-duty service. A hearing loss disability is first shown in the record on March 2014 VA audiometry As noted above, the Veteran was afforded VA examinations for hearing loss in March 2014, March 2020, and March 2021. Previous Board decisions found opinions on those examination inadequate, and as none found the Veteran's hearing loss to be related to his service or to be secondary to his TBI, these opinions need not be addressed further. On May 2020 VA TBI examination, the examiner indicated that the Veteran's TBI residuals did not include hearing loss. On August 2021 VA examination for hearing loss, upon review of the Veteran's claims file and interview and examination of the Veteran, the examiner noted that there was no significant shift in hearing thresholds beyond test variability from the Veteran's entrance audiometry to the audiometry on service separation examination, and that there was no objective evidence of permanent auditory damage during his active-duty service from his acknowledged noise exposure. The examiner further noted that there was no evidence of complaints and/or treatment for hearing loss during his active-duty service. The examiner indicated that although noise exposure has been conceded and that there may be a relationship between exposure to noise and auditory damage, and hearing loss is well-established, that auditory damage and hearing loss are due to the noise exposure is not conceded based on showing noise exposure alone. The examiner explained that there must be a nexus of auditory damage to the noise in service to relate the Veteran's current hearing loss to his military noise exposure and not another etiology. The examiner opined that the Veteran's bilateral hearing loss was less likely than not related to the Veteran's active-duty service, to include any military noise exposure. The examiner explained that while a concussion or head trauma could cause hearing loss, it would normally be found proximately after the incident occurred and thus would have shown up on the Veteran's service separation examination (but did not). The examiner noted that hearing loss could also occur if there was a transverse or longitudinal fracture to the temporal bone (which was not shown at the time of the MVA in service). The examiner further opined that the Veteran's bilateral hearing loss was less likely than not caused or aggravated by his service-connected TBI. The examiner explained that comparison of the current audiometry on August 2021 VA examination with the previous audiometry results found improvement in the Veteran's high frequencies and that thus there was evidence that the Veteran's bilateral hearing loss was fluctuating (and had not worsened). As a hearing loss disability was not manifested in service or in the first year following the Veteran's separation for service, and was not clinically documented until the first VA examination in March 2014, service connection for such disability on the basis that it manifested as chronic in service, on a chronic disease presumptive basis (under 38 U.S.C. § 1112), or based on continuity is not warranted. Whether or not under such circumstances a current hearing loss disability may be etiologically related to remote service and exposure to noise therein is a medical question. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed Cir. 2007). The Veteran is a layperson and therefore his own opinion is not competent evidence in the matter. He has not submitted any medical (opinion or treatise) evidence in support of his claim. Regarding this dispositive question, the Board finds the opinion on August 2021 VA examination to be the most probative medical evidence. The report reflects close review of the Veteran's claims file and includes rationale that cites to accurate factual data (such as normal audiometry in service, including on separation) and medical principles (that a puretone threshold shift during service is not shown and that hearing loss due to head trauma would have become apparent soon after the trauma). Regarding the Veteran's alternate theory of entitlement, that his hearing loss is secondary to TBI, whether a service-connected disability (such as TBI) caused or aggravated a bilateral hearing loss disability is also a medical question that requires medical expertise. See Jandreau, 492 F.3d 1372. The only medical evidence in the record that addresses whether the Veteran's bilateral hearing loss disability is secondary to his service-connected TBI is in the opinion of the August 2021 VA examiner. The opinion is based on a thorough review of the medical history of the Veteran's bilateral hearing loss and (service-connected) TBI. The opinion includes rationale that cites to supporting clinical data (noting that they show that the hearing loss is fluctuating, and has not worsened) and medical principles (with citation to supporting medical treatises). Furthermore, the opinion of the August 2021 VA examiner is consistent with the findings by the May 2020 VA TBI examiner, who found that the Veteran's TBI residuals did not include hearing loss. The Veteran has not submitted any) competent (medical) evidence in the record to the contrary. AS was noted above, he is a layperson, and his own assertion that his bilateral hearing loss is secondary to (was caused by) his service-connected TBI is not competent evidence in the matter. The Board finds the August 2021 consulting provider's opinion persuasive. Considering the foregoing, the Board finds that the preponderance of the evidence is against the claim, under both direct and secondary service connection theories of entitlement, and that the appeal in the matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berryman, 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.