Citation Nr: 21073629 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 18-33 039 DATE: December 9, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. FINDING OF FACT The Veteran's bilateral hearing loss disability did not manifest in service or within one year of separation from active duty and it is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 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 from June 1961 to June 1964. In May 2019, the Veteran provided testimony at a Board video conference hearing before undersigned Veterans Law Judge (VLJ). In November 2019, the Board, in pertinent part issued a decision that denied the Veteran's claim of entitlement to service connection for a bilateral hearing loss disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In January 2021, the Veteran and the Secretary of VA (parties) filed a Joint Motion for Remand (JMR) with respect to the November 2019 Board decision, to vacate and remand the claim back to the Board, which was granted by the Court. In May 2021, the Board remanded the claim pursuant to the January 2021 JMR. A medical opinion was obtained in June 2021. In September 2021, the Board remanded the claim for further development including an addendum medical opinion to ensure compliance with the May 2021 Board remand directives and January 2021 JMR. There was substantial compliance with the Board's remand directives to decide the claim on appeal at the present time. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a bilateral hearing loss disability. The Veteran contends that service connection for a bilateral hearing loss disability is warranted because it was caused by his in-service noise exposure. Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In evaluating claims for service connection for hearing loss disability, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the grant of service connection for a bilateral hearing loss disability. The reasons follow. The Veteran has a current bilateral hearing loss disability for VA purposes. The Veteran's VA audiological examinations in December 2015 and June 2021 showed that at least one of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz at 40 decibels or greater in each the left and right ear. 38 C.F.R. § 3.385. Therefore, the evidence shows that the Veteran has a current bilateral hearing loss disability. Accordingly, the first element of service connection is met. As to evidence of a disease or injury in service, the Board finds the Veteran was exposed to in-service hazardous noise. The Veteran's Certificate of Release or Discharge from Active Duty (DD Form 214) documents that the Veteran had a military occupational specialty (MOS) of cannoneer, which is noted as having a "high" probability of hazardous noise exposure. During the May 2019 Board hearing, the Veteran testified regarding his duties which exposed him to cannon fire, howitzers, and other ammunition noise without earplugs. Although the Veteran's service treatment records do not show symptoms of or complaints for bilateral hearing loss, there is ample indication that he was exposed to acoustic trauma in service due to his MOS in the Army. See also November 2021 Appellant's Brief. The Veteran's statements about his experiences are credible and consistent with the places, types, and circumstances of his service. See 38 U.S.C. § 1154(a). In light of the above, the Board finds that the Veteran was exposed to hazardous noise during his service, and the second element of service connection, an in-service event, is met. However, the Board determines that the third element of service connection, the nexus requirement, is not met for the Veteran's current bilateral hearing loss disability. Specifically, the Veteran's current bilateral hearing loss disability did not manifest in service or within one year of separation from active duty and is not otherwise related to his active duty. During the May 2019 Board hearing, the Veteran testified that his hearing loss had "gotten progressively worse[,] and I did have hearing loss as soon as I got out of the service[,] I noticed it." Overall, the record shows that the first documented complaint of hearing loss and symptoms was in an April 2015 VA treatment record, which was the Veteran's initial audiological evaluation. The Veteran reported he suspected hearing loss since the 1960's with both ears equal, denied tinnitus, and reported that he had known he had a hearing deficit for many years but was not ready to pursue amplification until recently. The audiologist documented the Veteran's report of a history of noise exposure in the military for four years with no hearing protection and that there was no reported civilian noise exposure; however, the audiologist did not directly attribute the Veteran's current hearing loss to service. The audiologist diagnosed bilateral mild to moderate sensorineural hearing loss 25 - 8k Hz with good speech discrimination. The Veteran filed a claim (VA Form 21-526EZ) for hearing loss in September 2015. While the Veteran reported that he knew he had a hearing deficit for many years during the April 2015 VA audiological evaluation, a January 2009 VA medical record for a right eyelid operation admission evaluation reflects that the Veteran was "hard of hearing so speak up." A July 2009 VA medical record documents that the Veteran's hearing status was "good." A December 2011 private medical record shows that a physical examination was performed, and the private physician wrote that the Veteran had "normal hearing." Thus, the earliest report of a hearing deficiency was in January 2009, over forty years after the Veteran's June 1964 separation from service, although later reports reflect "good" and "normal" hearing until the April 2015 initial VA audiological evaluation. The absence of post-service complaints, findings, diagnosis, or treatment, for approximately four decades after service is one factor that tends to weigh against a finding of continuous symptoms since separation from service. The Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). The Veteran contends that he noticed hearing loss as soon as he got out of the service. See May 2019 Board hearing transcript. However, in an April 1964 Report of Medical History, which was completed for purposes of separation from service, the Veteran denied that he had ever or had at the time, "ear, nose, or throat trouble." The Veteran signed this document, wherein he attested that the information he provided in the form was "true and complete to the best of my knowledge." The Board accords high probative value and credibility to this document, as the Veteran completed it contemporaneously with service. In the April 1964 Report of Medical Examination, the clinical evaluation of the Veteran's "ears general" was normal, as determined by the September 2021 VA examiner, and the Veteran was assigned a "1" rating assessing hearing under the PULHES profile system, indicating that the Veteran's hearing was at a high level of fitness. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran's capacity and stamina ("P"); upper extremities ("U"); lower extremities ("L"); hearing ("H"); eyes ("E") and psychiatric condition ("S"); assessed on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). Thus, the Board finds that the Veteran's current bilateral hearing loss disability did not manifest in service or within one year of separation from active duty service, a presumption of service connection based on chronicity is not appropriate. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.307, 3.309(a). The Board has reviewed the Veteran's medical records and finds that the preponderance of the evidence is against a finding that bilateral hearing loss disability was a result of in-service noise exposure. The December 2015 VA examiner opined that the Veteran's bilateral ear hearing loss disability was not as likely as not caused by or a result of an event in military service. The examiner noted that the July 1961 Report of Medical Examination at induction documents hearing within normal hearing limits, bilaterally, using whispered voice testing and the April 1964 Report of Medical Examination at separation documents hearing within normal limits, bilaterally. The audiologist explained that although there is no frequency-specific data at induction, based on the thresholds obtained at separation a significant threshold shift was highly improbable. She concluded that an improbability of a significant threshold shift during military services indicates that it is not at least as likely as not that the Veteran's current hearing loss is related to his military service. Following the November 2019 Board decision that denied the Veteran's bilateral hearing loss disability claim, the parties to the January2021 JMR, the Veteran and the Secretary of VA, had found that the Board erred by relying on an inadequate December 2015 VA medical nexus opinion. Specifically, the opinion lacked a sufficient medical explanation, namely, the examiner opined that a significant threshold shift in hearing ability during active service, was "highly improbable," but the military entrance examination did not contain any specific data to support such a conclusion, as it was a whispered voice test. Moreover, the VA opinion lacked a rationale for finding that a lack of in-service significant threshold shift in hearing ability supports a finding that that the Veteran's current bilateral hearing loss is not related to noise exposure during service. The Board remanded the claim in May 2021 to obtain an addendum medical opinion. The Veteran was scheduled for an in-person examination and an opinion was obtained in June 2021 (contracted Disability Benefits Questionnaire (DBQ)). The examiner provided a similar opinion to the December 2015 VA examiner finding that although there is no frequency-specific data at enlistment, based on the thresholds obtained at separation, a significant threshold shift was "highly improbable," and that objective evidence found in the records does not support a significant change in hearing during military service. Most recently, pursuant to the September 2021 Board remand directives, another addendum medical opinion was obtained (contracted DBQ). The examiner opined that the claimed bilateral hearing loss disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury event, or illness. The examiner provided the rationale that the entrance examination was a whispered voice test, which is not frequency specific, but the separation examination indicated normal hearing for each ear with ASA-ISO/ANSI correction factors applied, which is objective evidence of no permanent auditory damage during active duty. The examiner acknowledged the Veteran's May 2019 testimony that he noticed hearing loss soon after separation; however, the examiner noted the Veteran did not seek services to document that hearing loss. She conceded the Veteran's in-service noise exposure of E-3, 8-inch howitzers, cannons, and firing of many different weapons with no hearing protection with an MOS of cannoneer. The examiner referenced the 2006 Institutes of Medicine (IOM) study that indicates there are no studies on humans indicating delayed onset hearing loss from noise exposure. She stated that there have been several studies by Kujawa, Liberman, and their colleagues in an attempt to dispute this statement, but they have all been conducted on rats, which studies have evidence suggesting damage to inner ear structures at the time of noise exposure that may lead to later onset hearing loss. The examiner cited to Shanks et al (2008) and Demetrius (2005) in support of her statement that generalizing findings from rodent studies to humans is fraught with difficulties at best and should be undertaken with great caution. She further noted that Kujawa and Liberman (2006) have also stated that "hearing losses in humans are multifactored and contributions from, and potential interactions among numerous variables that can shape any final outcomes." The examiner stated that any noise exposure throughout the Veteran's life, including traffic noise, smoke alarms, etc., would have to be considered in addition to any military noise exposure. The examiner added that many factors contribute to age-related hearing loss including genetic predisposition and medical conditions. The examiner stated that 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 military noise alone. To reiterate, the examiner pointed out that the normal hearing test at separation was objective evidence of no permanent auditory damage during active duty. The examiner concluded that the evidence was against a nexus in this case and, therefore, it is less likely than not that the bilateral hearing loss is related to military noise exposure. The Board finds that the most probative evidence of record is the opinion of the October 2021 examiner. The opinion provides competent and probative evidence that weighs against the Veteran's claim because the examiner reviewed the claims file, including examination reports in which the previous examiners interviewed the Veteran and performed audiological examinations, and provided a medical opinion supported by well-reasoned rationale, which was based upon the specific facts in the Veteran's case, medical principles, and medical literature. The Board's findings are supported by the fact that the claims file does not contain a medical opinion finding a causal link between the current bilateral hearing loss disability and the Veteran's in-service noise exposure. The Board acknowledges the Veteran's contentions that his current bilateral hearing loss is related to his in-service noise exposure, including conceded acoustic trauma due to the Veteran's MOS as a cannoneer. In the November 2021 Appellant's Brief, the Veteran's representative stated that in Hensley v. Brown, 5 Vet. App. 155 (1993), the Court held that a finding of normal hearing at service separation is not a bar to entitlement to service connection for hearing loss, even if hearing loss was first diagnosed years after separation. The October 2021 examiner considered the Veteran's lay assertions, including his testimony during the May 2019 Board hearing, and explained the absence of auditory damage in service evidenced by the normal audiological examination at separation, and cited to evidence against a finding of delayed onset hearing loss from noise exposure applying the facts to the Veteran's specific case. Monzingo v. Shinseki, 26 Vet. App. 97, 105-106 (2012). The October 2021 examiner's opinion, in contrast to the December 2015 and June 2021 opinions, did not rely on the "improbability" of a significant threshold shift, rather, the examiner based the opinion on the Veteran's objective normal audiological examination at separation. She cited to research which indicates there are no studies on humans indicating delayed onset hearing loss from noise exposure. In this case, the evidence is absent of post-service complaints, findings, diagnosis, or treatment, for approximately four decades after service. Further, the examiner addressed the previous examiners' opinions, which discussed a threshold shift being highly improbable based on normal hearing at separation, she explained that even if there was a 15dB or more change from entrance to separation, the Veteran's hearing was still normal per VA standards in each ear. Therefore, in consideration of the above, the Board finds that the October 2021 examiner's opinion cures the defects of the December 2015 and June 2021 opinions and is adequate for adjudication purposes pursuant to the January 2021 JMR. Also, within the November 2021 brief, the Veteran's representative noted VA had granted the Veteran a 10 percent rating for tinnitus and wrote, "[W]hat you have done is separate the Hearing Loss from the Tinnitus[,] which seems difficult to do. [The Veteran's] one set of ears was present for the noise exposure causing the Tinnitus, but you say the same noise did not contribute to the Hearing Loss." Within the June 2021 VA examination report, the examiner addressed that fact. She wrote, "It is widely known and accepted that harmful noise exposure can result in tinnitus while at the same time[,] not result[] in hearing loss." While the June 2021 opinion had been found to be inadequate to the extent that the examiner commented in the highly improbability of a significant threshold shift during service, this part of the medical opinion is adequate, as the examiner explained why in-service noise exposure could cause tinnitus but not hearing loss. To the extent the Veteran alleges a nexus between the bilateral hearing loss disability and in-service exposure to noise hazards, he is not competent to offer opinions as to the etiology of his current bilateral hearing disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The cause of hearing loss requires specialized training for determinations as to diagnosis and causation, and is, therefore, not susceptible to lay opinions on etiology. The Board has considered objective medical evidence which showed that he did not have a bilateral hearing loss disability for VA purposes until decades after service. Accordingly, service connection on a direct basis is denied. For all the reasons stated above, the preponderance of the evidence is against the claim of service connection for bilateral hearing loss disability on either a direct basis or a presumptive basis, the benefit-of-the-doubt doctrine is not for application, and the claim for service connection is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cheng, 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.