Citation Nr: 21075531 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-32 684 DATE: December 20, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT A hearing loss disability in either ear was not manifested during the Veteran's active service; sensorineural hearing loss (SNHL) was not manifested to a compensable degree within a year following his discharge from service; and his current hearing loss disability is not shown to be etiologically related to his service. CONCLUSION OF LAW Service connection for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from January 1968 to April 1969 and had service in the Army Reserves from April 1974 to April 1977 (including a period of inactive duty training (INACDUTRA) in April and May 1976). This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2014 Department of Veterans' Affairs (VA) rating decision. In December 2020, a video conference Board hearing was held before the undersigned; a transcript is in the record. In April 2021, this matter was remanded for additional development. At the outset, the Board finds there has been substantial compliance with its April 2021 remand directives in this matter (i.e., to the extent possible without the Veteran's cooperation). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002); Stegall v. West, 11 Vet. App. 268 (1998). In May 2021, VA requested the Veteran to provide additional information about his Reserve service; he did not respond. In June 2021, the AOJ requested service treatment records (STRs) (specifically any showing service in an armor unit and verifying any active duty service in the Army Reserves) for association with the claims file. In July 2021 correspondence, the Records Management Center (RMC) stated that all available STRs had been sent previously. The duty to assist a claimant is not a one-way street. See Olsen v. Principi, 3 Vet. App. 480 (1992); see also Wood v. Derwinski, 1 Vet. App. 406 (1991). Entitlement to service connection for bilateral hearing loss is denied. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38. C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). 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 to a compensable degree within a specified period postservice (one year for organic diseases of the nervous system). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). For diseases listed in 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). For VA compensation purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions, and may also mean statements conveying sound medical principles found in medical treatises, and may include statements in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran's STRs are silent regarding hearing loss. On December 1967 service entrance examination, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 -10 N/A 10 LEFT 5 5 5 N/A 5 Upon conversion from ASA to ISO-ANSI standards/units (for consistency in analysis), the puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 25 10 0 N/A 15 LEFT 20 15 15 N/A 10 In a contemporaneous report of medical history, the Veteran denied ear trouble, running ears, or hearing loss. On March 1969 service separation examination audiometry, puretone thresholds (converted to ISO values) were: HERTZ 500 1000 2000 3000 4000 20 10 15 N/A 10 15 10 10 N/A 10 In a contemporaneous report of medical history, the Veteran denied ear trouble, running ears, or hearing loss. On September 1973 re-enlistment examination, puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 N/A 15 LEFT 5 15 15 N/A 15 In a contemporaneous report of medical history, the Veteran denied ear trouble or hearing loss. In November 2014 correspondence, the Veteran stated that he was assigned to an Armor unit during basic training, and qualified in firing an M16-A1 rifle. On November 2014 Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ) audiometry, puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 35 20 30 55 60 LEFT 35 35 55 60 60 Speech discrimination testing revealed right ear speech discrimination was 84 percent correct and left ear speech discrimination was 80 percent correct. The examiner opined that since the Veteran's service induction, separation, and re-enlistment examinations all found normal hearing (no significant changes in puretone thresholds during the period from enlistment through the September 1973 re-enlistment examination) and he did not serve in combat or in an MOS associated with exposure to hazardous noise, it is less likely than not that his hearing loss is caused by or a result of military noise exposure. In April 2016, VA received military personnel records showing (in the Reserves) the Veteran's MOSs were metal body repair apprentice (April 1974), electrician (November 1974), and physical therapy specialist (November 1975). A May 2017 VA treatment record notes right ear (moderate sloping to severe rising to moderately severe) SNHL and left ear (moderate sloping to severe) SNHL. Speech discrimination testing revealed 92 percent correct right ear speech discrimination and 96 percent correct left ear speech discrimination. The provider noted that the Veteran's hearing loss was significant in that it interfered with communication and affected his participation in the provision of health care services. At the December 2020 Board hearing, the Veteran testified that he served in armor and was exposed to hazardous noise. A January 2021 private medical treatment record notes that the Veteran was exposed to hazardous noise from drag racing; his hearing loss had progressively worsened (recently). Puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 65 60 70 LEFT 20 30 65 65 70 Speech discrimination testing revealed right ear speech discrimination was 88 percent correct and left ear speech discrimination was 92 percent correct. In February 2021, VA received statements from the Veteran's family members generally relating his hearing loss to service; when he returned home from service, he turned up the television volume and did not respond to others in conversation (because he could not hear well). On September 2021 Hearing Loss and Tinnitus DBQ audiometry, puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 65 65 75 LEFT 35 40 65 60 65 Speech discrimination testing revealed right ear speech discrimination was 82 percent correct and left ear speech discrimination was 86 percent correct. The examiner noted the Veteran had military noise exposure to firearms, large trucks, and various weapons and recreational noise exposure to drag racing, and exposed to 50 years of noise in his postservice occupation as a semi-truck driver. She noted that his entrance and separation active duty audiograms showed normal hearing and no significant permanent shift in hearing thresholds (objective evidence of no permanent auditory damage on active duty); thresholds on entrance to the Reserves in 1973 were also normal and not significantly different from those on entrance to active duty. Although he may have been exposed to hazardous noise in service (and the relationship of noise, auditory damage, and hearing loss is well-established), auditory damage and hearing loss are not conceded based on exposure to noise alone [but must be supported by evidence of auditory damage] . She explained that noise-induced hearing loss is not known to begin or progress after a specific exposure ceases. She attributed his current hearing loss to a combination of etiologies: 1) postservice occupational noise exposure 50 years as a semi-truck driver (an occupation which commonly is noisy enough to affect hearing over time, plus notching of graphed audiogram shape at 4000 Hz right and 6000 Hz left being consistent with noise exposure), 2) presbycusis the overall audiogram shape is consistent with presbycusis, and/or 3) diabetes audiogram shape is consistent with diabetes in the 250 -1000 Hz range. (She noted that the January 2021 audiogram shape is much more consistent with noise exposure, so she suspected postservice noise exposure is the primary etiology.) She opined that it is less likely than not that his hearing loss is caused by or a result of military noise exposure. (She observed that Reserve duty records showing moderate to high probability for hazardous noise exposure and/or a Reserves separation audiogram showing a hearing loss disability would negate her negative nexus (to service) opinion.) In October 2021, VA received statements from the Veteran and his representative noting that the VA was unaware that he served on active duty for 15 months (when he was exposed to continuous, extreme loud noises on a daily basis) and that his postservice occupation (as a truck driver) did not expose him to hazardous noise daily (he was rarely around trucks with their engines roaring and did not drive heavy-duty loud trucks). At the outset, it is noteworthy that Reserve service is only qualifying for VA benefits during periods when the Veteran was on active duty for training (ACDUTRA), for disease or injury, or INACDUTRA, for injury. The evidence of record does not show (and he has not specifically alleged) an acoustic trauma injury during the April/May period of INACDUTRA. It is not in dispute that the Veteran has a current diagnosis of a bilateral hearing loss disability and that he was exposed to some loud noise in service. What remains necessary to substantiate this claim is competent evidence that his current hearing loss disability is etiologically related to his service/and exposure to noise trauma therein. See Shedden, 381 F.3d at 1167. The evidence does not show, and it is not alleged, that a hearing loss disability of either ear was manifested in service. The Veteran's STRs, including his March 1969 service separation examination report, are silent for complaints, treatment, findings, or diagnosis pertaining to hearing loss. Likewise, a hearing loss disability of either ear is not shown to have been manifested within a year following the Veteran's separation from his active duty service, and postservice continuity of SNHL disability is not shown. While the Veteran may be competent to report his perceptions of reduced hearing acuity during service and soon thereafter, he is not competent to establish by his own recollections of remote perceptions that what he perceived many years earlier reflected an underlying hearing loss disability (as defined in 38 C.F.R. § 3.385) in service or in the first postservice year. Under governing regulation (38 C.F.R. § 4.85), hearing loss disability must be demonstrated by regulation-specified audiometry. Right and left ear hearing loss disability was first shown by audiometry in November 2014 (over 45 years after the Veteran's separation from service). Thus, his and his family members' lay recollections of remote complaints, noted above, do not establish continuity of a hearing loss disability over that 45-year interim period. Accordingly, service connection for bilateral hearing loss 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 (under 38 C.F.R. § 3.303(b)) is not warranted. In the absence of evidence of onset in service, manifestation in the first postservice year, or continuity of symptoms, whether a current hearing loss disability is related to remote service/events (such as exposure to noise) therein is a medical question beyond the realm of common knowledge, and incapable of resolution by lay observation. See Jandreau, 492 F.3d at 1377. It requires medical expertise. The Veteran is a layperson, and his own opinion that his hearing loss disability is related to his service is not competent evidence in the matter. Multiple VA medical opinions in the record were found to be inadequate for rating purposes (either because the examiner (in November 2014) based her (negative nexus opinion to service) solely on normal entrance and separation examinations or because the audiologist did not provide an opinion (as in January 2021), and merit lesser probative value in this matter.] The only competent and fully adequate medical opinion in this matter is found in the September 2021 DBQ, and indicates that it is less likely than not that the Veteran's bilateral hearing loss is related to his service. The consulting audiologist applied her medical expertise to the specific circumstances in this case, cited accurately to supporting factual data (normal hearing at enlistment and separation from service with no significant permanent shift in hearing thresholds), medical principles (that noise-induced hearing loss is not known to begin or progress after the specific exposure ceases) and included adequate rationale for the conclusion reached. She explained that the audiogram configurations are consistent with postservice noise exposure (including in 50 years in the truck driving industry), presbycusis, and diabetes and concluded that a combination of those nonservice-related etiological factors contributed to the development of his hearing loss disability (though she suspected postservice occupational noise exposure to be a primary etiology because a January 2021 audiogram configuration is more consistent with noise exposure). The Veteran has not presented an adequate (equally or more probative) medical opinion or medical treatise evidence to the contrary. While the consulting provider qualified the opinion by indicating that any Reserve duty records (showing moderate to high probability for hazardous noise exposure and/or a Reserve separation audiogram showing hearing loss) would negate her negative nexus (to service) opinion, such records are not found, and more significantly, that reservation suggests that the provider believed that the entire period when the Veteran was in reserve service was qualifying service to establish service connection, when in fact only periods of ACDUTRA and INACDUTRA during which the Veteran was exposed to acoustic trauma (and he has not identified any) is qualifying. Thus, circumstances under which the opinion would be "negated" are not shown. The Board finds the September 2021 opinion to be persuasive. The Board acknowledges the October 2021 statements, alleging that the consulting VA provider did not consider the Veteran's 15 months of active duty for and that his postservice occupation as a truck driver did not expose him to a high degree of hazardous noise (and therefore his hearing loss is related to exposure to noise in service). To the contrary, the September 2021 examiner did actually consider his active duty period (and acknowledged his then exposures to noise); citing to factual data and medical principles, she explained why remote exposure to noise was not the cause of the current hearing loss disability. She explained that the current audiogram configuration (not found on separation and re-enlistment audiometry) supported postservice exposure to noise as a likely etiology. Notably, she did not identify his postservice truck driving career as the only nonservice-related etiology; rather, she opined that his hearing loss is due to a combination of etiologies (truck driver, presbycusis, and diabetes), with postservice noise exposure suspected to be primary among those etiologies. Accordingly, the Board finds the October 2021 statements non-persuasive. Considering the foregoing, the Board finds that the preponderance of the evidence is against the claim of service connection for bilateral hearing loss. Therefore, the appeal in this matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chu, 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.