Citation Nr: 21071886 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-40 229 DATE: December 1, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically 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, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1966 to July 1968. The Board thanks the Veteran for his service to our country. The Board remanded the issue on appeal in November 2019. It now returns for appellate review. Entitlement to service connection for bilateral hearing loss. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, including sensorineural hearing loss (as an organic disease of the nervous system) will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). The Veteran's representative states that the Veteran contends that his bilateral hearing loss is etiologically related to traumatic noise levels during active duty. The Veteran's representative also states Veteran's symptoms began during active duty and have developed since then. The Veteran's representative notes that according to the National Institute of Health, noise-induced hearing loss can be immediate or take a long time to be noticeable. The Veteran's representative also cited to another article for the proposition that when the ears are exposed to extremely loud noises, or to prolonged loud noises, inner ear structures can be damaged, which can lead to noise-induced hearing loss. See August 2021 brief. The Veteran's representative also points out that the July 2015 rating decision on appeal granted service connection for tinnitus as directly related to military service. The Veteran's representative also cited to a [May 2015] VA examiner's opinion that the Veteran's tinnitus was at least as likely as not caused by or a result of military noise exposure. The Veteran's representative's also noted VA's Duty MOS Noise Exposure Listing showed that the Veteran's MOS of Field Wireman carried a high probability of hazardous noise exposure. The Veteran's representative cited an article published in the Journal of Neuroscience in May 2015 indicating that auditory damage can accelerate hearing loss in aging in some cases and submitted a copy of this article in July 2020. See October 2019 brief. The Board finds that, while a February 2020 VA Hearing Loss and Tinnitus examination report shows that the Veteran has a current diagnosis of bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385, the preponderance of the evidence weighs against finding that his bilateral hearing loss began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). The Veteran's DD 214 reflects that his MOS was field wireman, and in-service noise exposure is established. However, to the extent the Veteran reports his bilateral hearing loss onset during service and continued thereafter, his assertions of continuity of symptomatology are largely not credible as they are undermined by the absence of any report of symptomatology of bilateral hearing loss until many years after separation from service. Indeed, the first post service audiometric testing of record is dated in March 2015 and the record does not reflect the Veteran reported complaints related chronic hearing loss prior to March 2015. For example, a May 2007 private medical record noted a past medical history, which among other disabilities, included tinnitus; however, hearing loss was not indicated. A June 2020 private medical record noted, in part, as to the Veteran's ears, acuity to conversational tones was good. Additionally, an October 2012 VA treatment record noted the Veteran reported he did not have decreased hearing. Further, October 2014, December 2014, and January 2015 private medical records also noted, in part, the Veteran was negative for hearing problems. Also, May 2015 VA audiometric testing did not provide findings of hearing loss for VA purposes as to the Veteran's left ear. Further, also inconsistent with any report that bilateral hearing loss onset during service and continued thereafter, review of the Veteran's service treatment records does not reflect any documentation of bilateral hearing loss, or complaints thereof. The record reflects in-service audiometric testing was conducted in January 1966, in conjunction with the Veteran's induction into service, and in June 1968, in conjunction with his separation from service. As it relates to VA examinations and VA records, including audiological reports, dated prior to January 1, 1967, the Board will assume the American Standards Association (ASA) standard was used. For VA examinations and VA records, including audiological reports, dated between January 1, 1967 and December 31, 1970, the Board will the data under both ASA and International Standards Organization-American National Standards Institute (ISO-ANSI) standards, relying on the unit measurements most favorable to the Veteran's appeal. Review of the Veteran's January 1966 and June 1968 audiometric testing does not demonstrate a degree of hearing loss per Hensley for either ear, at any relevant frequency (1000, 2000, 3000, and 4000 Hertz), when converted ISO-ANSI units. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (the threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss). Further, review of the Veteran's June 1968 audiometric testing does not demonstrate a degree of hearing loss per Hensley for either ear, at any relevant frequency (1000, 2000, 3000, and 4000 Hertz), under the ASA standard. Id. Thus, in weighing the evidence, the Board finds the Veteran's service treatment records and post service medical records, are more probative than any contention that his bilateral hearing loss onset during service and continued thereafter. Thus, to the extent the Veteran contends he had chronic symptoms of a hearing loss disability in service, or shortly after service, and ever since, the medical and lay evidence of record does not support this contention. For these reasons, the criteria for presumptive service connection based on chronic symptoms in service, continuous symptoms since service, or bilateral hearing loss that manifested to a compensable degree within one year of service separation, have not been met. Service connection for bilateral hearing loss, may still be granted on a non-presumptive direct-incurrence basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's bilateral hearing loss and an in-service injury, event or disease. 38 U.S.C. § 1110; 38C.F.R. § 3.303. In this regard, an August 2020 VA medical opinion acknowledged the May 2015 article, as discussed above, indicating that auditory damage can accelerate hearing loss in aging in some cases, but found it was less likely as not that the Veteran's hearing loss was related to auditory damage from noise exposure in service. The August 2020 VA examiner explained that there was no evidence of permanent auditory damage in service and was objective evidence of decrease in hearing post-separation. The August 2020 VA further explained was no significant permanent shift in hearing thresholds greater than test variability from entrance to separation, and this was objective evidence of no nexus of permanent auditory damage on active duty from conceded noise exposure. The August 2020 VA examiner explained, although hazardous noise exposure on active duty was conceded, and the relationship of noise, auditory damage and hearing loss is established, auditory damage or noise as etiology for hearing loss are not conceded from noise exposure alone. The August 2020 VA examiner further explained, regardless of onset, there must be a nexus of auditory damage on active duty to relate current hearing loss to noise on active duty and not another etiology and the evidence was against a nexus in this case. The August 2020 VA examiner found there was no record of hearing decrease located at separation or in the service treatment records and was no continuity of care for or chronicity of hearing loss since separation. The August 2020 VA examiner also explained the article provided on military service, auditory damage, and hearing loss, does not support hearing loss having a relationship to military noise in the presence of evidence against auditory damage in service. The August 2020 VA examiner explained there was evidence of no auditory damage in service and evidence of no nexus to relate current hearing loss to military noise. The Board finds the August 2020 VA opinion is entitled to great probative weight. The examiner set forth a detailed review of the Veteran's in-service and post-service auditory history and provided a fully articulated and well-reasoned opinion that addressed the Veteran's auditory history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). The Board has considered the Veteran's statements that his hearing loss is related to acoustic noise exposure during service. However, the Board finds that the August 2020 VA opinion outweighs the Veteran's statements. The VA examiner reviewed the record and the submitted medical article, and provided a rationale. The record does not conflict with the VA opinion. Further, as to the articles cited to and/or submitted by the Veteran's representative, these articles provided medical information that was general in nature, and did not address the specifics of the Veteran's case, and thus, lack probative value. In light of the foregoing, the Board finds that service connection for bilateral hearing loss is not warranted and must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107. M. ESPINOZA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Davitian, 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.