Citation Nr: 21072319 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-07 913 DATE: December 2, 2021 ORDER Service connection for a bilateral hearing loss disability is denied. FINDING OF FACT The weight of the evidence is against finding that the Veteran has a bilateral hearing loss disability that had its onset during service or manifested by a compensable degree within the first post-service year; and, it is not otherwise shown to be related to disease or injury in service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from October 1983 to October 1986. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision that denied service connection for, inter alia, bilateral hearing loss. The Veteran's notice of disagreement (NOD) was received in March 2015. The RO issued the statement of the case (SOC) in February 2016, and the Veteran's VA Form 9, substantive appeal was received in February 2016. In December 2019 and September 2020, the Board remanded the case for further development and adjudicative action. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. § 3.303 (a) (2018). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2018). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Additionally, certain chronic diseases, including sensorineural hearing loss and tinnitus (as organic diseases of the nervous system), may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303 (b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels (dB) or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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. When audiometric test results at separation from service do not meet the regulatory requirements for establishing a "disability" at that time, a veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels. Id. at 157. 1. Entitlement to service connection for a bilateral hearing loss disability The Veteran contends that he has bilateral hearing loss which is related to in-service noise exposure. Specifically, that his hearing loss is due to an in-service incident on the rifle range. See, e.g., August 2019 Board Hearing Transcript. Service Treatment Records (STRs) contain audiograms from May 1983, April 1984, February 1985; and, a post-service February 1988 Army National Guard examination. The May 1983 audiogram shows the following puretone thresholds (in dB): HERTZ 500 1000 2000 3000 4000 RIGHT 30 15 5 10 20 LEFT 20 10 0 0 0 The May 1983 Report of Medical History which was provided in conjunction with the May 1983 Report of Medical Examination containing the May 1983 audiogram, indicates that the Veteran reported hearing loss at the time of entry into service, and indicated that he had tubes put in his ears when he was 11 years old. The examiner noted, however, that the childhood insertion of tubes was "NCD" (not considered disabling) and his hearing on that day's examination was "H-1" (within normal limits). The April 1984 audiogram shows the following puretone thresholds (in dB): HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 5 0 LEFT 15 10 5 5 15 The February 1985 audiogram shows the following puretone thresholds (in dB): HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 5 5 15 LEFT 10 0 5 5 5 In August 1986, prior to separation, the Veteran opted not to have a separation examination, and this was approved, as a review of the Veteran's medical records did not indicate that a separation examination was necessary. The February 1988 audiogram shows the following puretone thresholds (in dB): HERTZ 500 1000 2000 3000 4000 RIGHT 45 20 35 35 30 LEFT 15 15 5 5 5 This audiogram was part of a February 1988 periodic Report of Medical Examination. In the summary section of the report, the examiner noted that the Veteran had decreased hearing on audiometry, but also indicated that a repeat of the audiometric testing would be conducted under optimal conditions. The Veteran was found qualified for retention and his physical profile (PULHES) listed a "1" under "E" which indicates normal ears. The Veteran was afforded a VA hearing loss and tinnitus examination in October 2014. The examiner was unable to conduct speech recognition testing or puretone threshold testing of the right ear; puretone threshold testing of the left ear revealed a hearing loss disability for VA purposes. The examiner reviewed the May 1983 and February 1985 in-service audiograms, the latter of which showed "normal hearing in both ears," and concluded that there was no permanent positive threshold shift, worse than reference threshold, during service. The examiner diagnosed mixed hearing loss, and acknowledged a March 2014 diagnosis of right middle ear cholesteatoma. For those reasons, and based on the Veteran's MOS which carries a low probability of hazardous noise exposure, the examiner opined that it was less likely than not that the Veteran's bilateral hearing loss was caused by or a result of an in-service event. The Veteran was afforded another VA hearing loss and tinnitus examination in January 2020, to obtain a nexus opinion in light of the Veteran's reports that his hearing loss began in service. The examiner opined that due to a lack of evidence against the claim, it is at least evenly balanced as to whether the Veteran's bilateral hearing loss disability is related to in-service acoustic trauma. See January 2020 Medical Opinion Disability Benefits Questionnaire (DBQ). Specifically, the examiner noted no audiogram at separation, and noted that the Veteran reported at the examination that he had a decrease in hearing during active duty. She cited the Veteran's report of weapons range noise exposure in 1985, and noted "noise exposure on active duty is conceded." She noted that the hearing loss shown at the examination is consistent with noise-induced hearing loss and is beyond the normal progression for age; moreover, there is no evidence to confirm or deny a significant shift in hearing thresholds or auditory damage from conceded noise. As there was no evidence bearing against the claim, the examiner opined in favor of the Veteran; specifically, that the "hearing loss is at least as likely as not related to acoustic trauma from military noise." The examiner provided a second opinion, finding that it is less likely than not that the Veteran's hearing loss is related to military noise exposure. In so finding, the examiner cited no significant permanent shift in hearing thresholds beyond test variability from entrance to the last examination of record during service (February 1985), which is objective evidence that there was no permanent auditory damage on active duty from conceded noise. The examiner cited no report of complaint or treatment for hearing decrease in the STRs, including at separation. The examiner acknowledged that "noise exposure is conceded" and that there is a well-established relationship between noise, auditory damage and hearing loss, but that auditory damage and hearing loss are not conceded based on noise exposure alone. Rather, there must be a nexus of auditory damage to relate the Veteran's current hearing loss to military noise rather than another etiology. The Veteran was afforded another VA hearing loss and tinnitus examination in June 2021. Audiometric testing again revealed a bilateral hearing loss disability for VA purposes, and speech discrimination was 60 percent in the right ear and 90 percent in the left ear. The examiner opined that the Veteran's bilateral hearing loss was less likely than not (less than a 50 percent probability) incurred in or caused by service. The rationale concerning the right ear was as follows: Veteran served in the Army from 04 October 83 to 03 October 86. His MOS was Supply Specialist which has a low probability of hazardous noise exposure. Veteran reported exposure to small and large arms fire, tanks, generators, grenades, mortars, helicopters, and airplanes. Review of STRs revealed normal hearing at enlistment (31 May 83). Subsequent audiograms dated 19 Apr 84, 02 Jul 84, and 13 February 85 revealed normal hearing for the right ear. There is no significant permanent shift in hearing thresholds for either ear beyond test variability from enlistment to 13 Feb 85. Records were silent for audiograms after 13 Feb 85 until 07 February 88. The hearing test of 07 Feb 88 was 16 months after his exit from active duty. Right ear results indicated a moderate rising to mild hearing loss across all frequencies, with the exception of 1000Hz. This flat loss across almost all frequencies is not consistent with a noise-induced hearing loss. Review of records revealed that veteran has had a significant history of middle ear disorder, ear infections, and Eustachian Tube Disorder. This type of flat loss across almost all frequencies is more consistent with a middle ear disorder. Veteran reports that he is currently under the care of a VA otolaryngologist for a cholesteatoma. Surgery has been recommended but the veteran reported that he does not want to have the surgery. He reportedly uses drops in his ear once daily. An otoscopic exam of the veteran's right ear was grossly abnormal and consistent with a middle ear disorder. Medical records do not support any loss in hearing in the right ear until 16 months after veteran's exit from active duty. There is no report of complaint/ treatment for hearing decrease in STRs or at separation. Medical records do support a persistent middle ear disorder that results in hearing loss which is not caused by or a result of exposure to military noise. There must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. The evidence is against a nexus in this case; therefore, it is less likely than not that the hearing loss is related to military noise exposure. [sic] The rationale concerning the left ear was as follows: Veteran served in the Army from 04 October 83 to 03 October 86. His MOS was Supply Specialist which has a low probability of hazardous noise exposure. Veteran reported exposure to small and large arms fire, tanks, generators, grenades, mortars, helicopters, and airplanes. Review of STRs revealed normal hearing at enlistment (31 May 83). Subsequent audiograms dated 19Apr84, 02 Jul 84, and 13 February 85 revealed normal hearing for the left ear. There is no significant permanent shift in hearing thresholds for either ear beyond test variability from enlistment to 13 February 85. Records were silent for audiograms after 13 February 85 until 07 February 88. The hearing test of 07 February 88 was 16 months after his exit from active duty and indicated normal hearing for all frequencies in his left ear. Therefore, hearing is considered to be normal at exit. There is no significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which is objective evidence of no permanent auditory damage on active duty from conceded noise. There is no report of complaint/treatment for hearing decrease in STRs or at separation. 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. There must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. The evidence is against a nexus in this case; therefore, it is less likely than not that the hearing loss is related to military noise exposure In light of the above evidence, the analysis turns to whether the elements of the hearing loss service connection claim are met. Initially, the Veteran has a bilateral hearing loss disability for VA purposes. See, e.g. June 2021 VA hearing loss and tinnitus Disability Benefits Questionnaire (DBQ), p. 2. Thus, the dispositive issue is whether a "nexus" exists to connect the Veteran's hearing loss to service. On that issue, the record contains the October 2014, January 2020, and June 2021 VA examiners' opinions. The October 2014 opinion does not address relevant lay evidence specifically, the Veteran's own statements concerning in-service noise exposure to weapons fire. Moreover, the examiner did not address the February 1988 hearing examination results which show a positive threshold shift. The opinion thus carries low probative value. The January 2020 examiner provided conflicting opinions such that the findings do not hold probative value one way or another. Put another way, the opinions carry low probative value because it is not possible to decipher the examiner's actual opinion, and it is not clear why the same examiner provided conflicting opinions. The June 2021 examiner provided clear opinions which address the STRs and the post-service (February 1988) audiogram. The examiner addressed the difference in puretone thresholds from May 1983 to February 1985, and noted that such difference did not amount to a significant permanent threshold shift as would indicate noise-induced hearing loss. The examiner also discussed how the in-service audiometric results, when compared to the February 1988 audiometric testing results, do not support an in-service noise-induced hearing loss. The examiner considered the Veteran's lay statements concerning onset and cause of hearing loss, and discussed an alternative cause of his right ear hearing loss (cholesteatoma). The opinion is clearly worded as to be unambiguous, and is based on a thoroughly reasoned rationale supported by an accurate factual basis. For those reasons, the opinion carries significant probative value. The Veteran appears sincere in his belief that his hearing loss is related to in-service noise exposure. However, the record does not show that the Veteran has the requisite medical expertise to provide such an opinion, because the issue is complex in nature and requires specialized medical expertise, training, and skills. The Veteran's STRs show that the Veteran did not report noticing a decrease in hearing during service, and none is shown. As a result, the Veteran's lay belief that a link exists which would satisfy the "nexus" requirement of the service connection claim based on the facts in this case, carries no probative value. As a result, the most probative evidence of record is the June 2021 VA examiner's opinion. Therefore, the weight of the evidence is against the claim. When the weight of the evidence is against the claim, the benefit of the doubt rule does not apply. There is no reasonable doubt to resolve in the appellant's favor, and for that reason, the claim must be denied. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. KAYS HUKILL 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.